(1) 43, if the defendant is convicted under 21 U.S.C.
§ 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C.
§ 960(b)(1), (b)(2), or (b)(3), and the offense of conviction
establishes that death or serious bodily injury resulted from the use of the
substance and that the defendant committed the offense after one or more prior
convictions for a similar offense; or

(2) 38, if the defendant is convicted under 21 U.S.C.
§ 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C.
§ 960(b)(1), (b)(2), or (b)(3), and the offense of conviction
establishes that death or serious bodily injury resulted from the use of the
substance; or

(3) the offense level specified in the Drug Quantity Table set forth
in subsection (c) below.

(b) Specific Offense Characteristics

(1) If a dangerous weapon (including a firearm) was possessed,
increase by 2 levels.

(2) If the defendant unlawfully imported or exported a controlled
substance under circumstances in which (A) an aircraft other than a regularly
scheduled commercial air carrier was used to import or export the controlled
substance, or (B) the defendant acted as a pilot, copilot, captain, navigator,
flight officer, or any other operation officer aboard any craft or vessel
carrying a controlled substance, increase by 2 levels. If the resulting offense
level is less than level 26, increase to level 26.

(3) If the object of the offense was the distribution of a controlled
substance in a prison, correctional facility, or detention facility, increase
by 2 levels.

(4) If (A) the offense involved the importation of amphetamine or
methamphetamine or the manufacture of amphetamine or methamphetamine from
listed chemicals that the defendant knew were imported unlawfully, and (B) the
defendant is not subject to an adjustment under §3B1.2 (Mitigating Role),
increase by 2 levels.

(5) (Apply the greater):

(A )If the offense involved (i) an unlawful discharge, emission, or
release into the environment of a hazardous or toxic substance; or (ii) the
unlawful transportation, treatment, storage, or disposal of a hazardous waste,
increase by 2 levels.

(B) If the offense (i) involved the manufacture of amphetamine or
methamphetamine; and (ii) created a substantial risk of harm to (I) human life
other than a life described in subdivision (C); or (II) the environment,
increase by 3 levels. If the resulting offense level is less than level 27,
increase to level 27.

(C) If the offense (i) involved the manufacture of amphetamine or
methamphetamine; and (ii) created a substantial risk of harm to the life of a
minor or an incompetent, increase by 6 levels. If the resulting offense level
is less than level 30, increase to level 30.

(6) If the defendant meets the criteria set forth in subdivisions
(1)-(5) of subsection (a) of §5C1.2 (Limitation on Applicability of
Statutory Minimum Sentences in Certain Cases), decrease by 2
levels.

[Subsection (c) (Drug Quantity Table) is set forth on the following
pages.]

(d)Cross References

(1) If a victim was killed under circumstances that would constitute
murder under 18 U.S.C. § 1111 had such killing taken place within the
territorial or maritime jurisdiction of the United States, apply §2A1.1
(First Degree Murder).

(2) If the defendant was convicted under 21 U.S.C. § 841(b)(7)
(of distributing a controlled substance with intent to commit a crime of
violence), apply §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect
to the crime of violence that the defendant committed, or attempted or intended
to commit, if the resulting offense level is greater than that determined
above.

(c) DRUG QUANTITY TABLE

Controlled Substances and Quantity*

Base Offense
Level

(1)

30 KG or more of Heroin (or the equivalent amount of other
Schedule I or I Opiates);

150 KG or more of Cocaine (or the equivalent amount of other
Schedule I or II Stimulants);

1.5 KG or more of Cocaine Base;

30 KG or more of PCP, or 3 KG or more of PCP (actual);

15 KG or more of Methamphetamine, or 1.5 KG or more of
Methamphetamine (actual), or 1.5 KG or more of "Ice";

15 KG or more of Amphetamine, or 1.5 KG or more of Amphetamine
(actual);

300 G or more of LSD (or the equivalent amount of other
Schedule I or II Hallucinogens);

12 KG or more of Fentanyl; 3 KG or more of a Fentanyl Analogue;

30,000 KG or more of Marihuana;

6,000 KG or more of Hashish;

600 KG or more of Hashish Oil;

30,000,000 units or more of Schedule I or II Depressants;

1,875,000 units or more of Flunitrazepam.

Level 38

(2)

At least 10 KG but less than 30 KG of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 50 KG but less than 150 KG of Cocaine (or the
equivalent amount of other Schedule I or II Stimulants);

At least 500 G but less than 1.5 KG of Cocaine Base;

At least 10 KG but less than 30 KG of PCP, or at least 1 KG
but less than 3 KG of PCP (actual);

At least 5 KG but less than 15 KG of Methamphetamine, or at
least 500 G but less than 1.5 KG of Methamphetamine (actual), or at least 500 G
but less than 1.5 KG of "Ice";

At least 5 KG but less than 15 KG of Amphetamine, or at least
500 G but less than 1.5 KG of Amphetamine (actual);

At least 100 G but less than 300 G of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 4 KG but less than 12 KG of Fentanyl;

At least 1 KG but less than 3 KG of a Fentanyl Analogue;

At least 10,000 KG but less than 30,000 KG of Marihuana;

At least 2,000 KG but less than 6,000 KG of Hashish;

At least 200 KG but less than 600 KG of Hashish Oil;

At least 10,000,000 but less than 30,000,000 units of Schedule
I or II Depressants;

At least 625,000 but less than 1,875,000 units of
Flunitrazepam.

Level 36

(3)

At least 3 KG but less than 10 KG of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 15 KG but less than 50 KG of Cocaine (or the
equivalent amount of other Schedule I or II Stimulants);

At least 150 G but less than 500 G of Cocaine Base;

At least 3 KG but less than 10 KG of PCP, or at least 300 G
but less than 1 KG of PCP (actual);

At least 1.5 KG but less than 5 KG of Methamphetamine, or at
least 150 G but less than 500 G of Methamphetamine (actual), or at least 150 G
but less than 500 G of "Ice";

At least 1.5 KG but less than 5 KG of Amphetamine, or at least
150 G but less than 500 G of Amphetamine (actual);

At least 30 G but less than 100 G of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 1.2 KG but less than 4 KG of Fentanyl;

At least 300 G but less than 1 KG of a Fentanyl Analogue;

At least 3,000 KG but less than 10,000 KG of Marihuana;

At least 600 KG but less than 2,000 KG of Hashish;

At least 60 KG but less than 200 KG of Hashish Oil;

At least 3,000,000 but less than 10,000,000 units of Schedule
I or II Depressants;

At least 187,500 but less than 625,000 units of
Flunitrazepam.

Level 34

(4)

At least 1 KG but less than 3 KG of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 5 KG but less than 15 KG of Cocaine (or the
equivalent amount of other Schedule I or II Stimulants);

At least 50 G but less than 150 G of Cocaine Base;

At least 1 KG but less than 3 KG of PCP, or at least 100 G but
less than 300 G of PCP (actual);

At least 500 G but less than 1.5 KG of Methamphetamine, or at
least 50 G but less than 150 G of Methamphetamine (actual), or at least 50 G
but less than 150 G of "Ice";

At least 500 G but less than 1.5 KG of Amphetamine, or at
least 50 G but less than 150 G of Amphetamine (actual);

At least 10 G but less than 30 G of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 400 G but less than 1.2 KG of Fentanyl;

At least 100 G but less than 300 G of a Fentanyl Analogue;

At least 1,000 KG but less than 3,000 KG of Marihuana;

At least 200 KG but less than 600 KG of Hashish;

At least 20 KG but less than 60 KG of Hashish Oil;

At least 1,000,000 but less than 3,000,000 units of Schedule I
or II Depressants;

At least 62,500 but less than 187,500 units of Flunitrazepam.

Level 32

(5)

At least 700 G but less than 1 KG of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 3.5 KG but less than 5 KG of Cocaine (or the
equivalent amount of other Schedule I or II Stimulants);

At least 35 G but less than 50 G of Cocaine Base;

At least 700 G but less than 1 KG of PCP, or at least 70 G but
less than 100 G of PCP (actual);

At least 350 G but less than 500 G of Methamphetamine, or at
least 35 G but less than 50 G of Methamphetamine (actual), or at least 35 G but
less than 50G of "Ice";

At least 350 G but less than 500 G of Amphetamine, or at least
35 G but less than 50 G of Amphetamine (actual);

At least 7 G but less than 10 G of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 280 G but less than 400 G of Fentanyl;

At least 70 G but less than 100 G of a Fentanyl Analogue;

At least 700 KG but less than 1,000 KG of Marihuana;

At least 140 KG but less than 200 KG of Hashish;

At least 14 KG but less than 20 KG of Hashish Oil;

At least 700,000 but less than 1,000,000 units of Schedule I
or II Depressants;

At least 43,750 but less than 62,500 units of
Flunitrazepam.

Level 30

(6)

At least 400 G but less than 700 G of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 2 KG but less than 3.5 KG of Cocaine (or the
equivalent amount of other Schedule I or II Stimulants);

At least 20 G but less than 35 G of Cocaine Base;

At least 400 G but less than 700 G of PCP, or at least 40 G
but less than 70 G of PCP (actual);

At least 200 G but less than 350 G of Methamphetamine, or at
least 20 G but less than 35 G of Methamphetamine (actual), or at least 20 G but
less than 35G of "Ice";

At least 200 G but less than 350 G of Amphetamine, or at least
20 G but less than 35 G of Amphetamine (actual);

At least 4 G but less than 7 G of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 160 G but less than 280 G of Fentanyl;

At least 40 G but less than 70 G of a Fentanyl Analogue;

At least 400 KG but less than 700 KG of Marihuana;

At least 80 KG but less than 140 KG of Hashish;

At least 8 KG but less than 14 KG of Hashish Oil;

At least 400,000 but less than 700,000 units of Schedule I or
II Depressants;

At least 25,000 but less than 43,750 units of Flunitrazepam.

Level 28

(7)

At least 100 G but less than 400 G of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 500 G but less than 2 KG of Cocaine (or the
equivalent amount of other Schedule I or II Stimulants);

At least 5 G but less than 20 G of Cocaine Base;

At least 100 G but less than 400 G of PCP, or at least 10 G
but less than 40 G of PCP (actual);

At least 50 G but less than 200 G of Methamphetamine, or at
least 5 G but less than 20 G of Methamphetamine (actual), or at least 5 G but
less than 20 G of"Ice";

At least 50 G but less than 200 G of Amphetamine, or at least
5 G but less than 20 G of Amphetamine (actual);

At least 1 G but less than 4 G of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 40 G but less than 160 G of Fentanyl;

At least 10 G but less than 40 G of a Fentanyl Analogue;

At least 100 KG but less than 400 KG of Marihuana;

At least 20 KG but less than 80 KG of Hashish;

At least 2 KG but less than 8 KG of Hashish Oil;

At least 100,000 but less than 400,000 units of Schedule I or
II Depressants;

At least 6,250 but less than 25,000 units of Flunitrazepam.

Level 26

(8)

At least 80 G but less than 100 G of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 400 G but less than 500 G of Cocaine (or the
equivalent amount of other Schedule I or II Stimulants);

At least 4 G but less than 5 G of Cocaine Base;

At least 80 G but less than 100 G of PCP, or at least 8 G but
less than 10 G of PCP (actual);

At least 40 G but less than 50 G of Methamphetamine, or at
least 4 G but less than 5 G of Methamphetamine (actual), or at least 4 G but
less than 5 G of "Ice";

At least 40 G but less than 50 G of Amphetamine, or at least 4
G but less than5 G of Amphetamine (actual);

At least 800 MG but less than 1 G of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 32 G but less than 40 G of Fentanyl;

At least 8 G but less than 10 G of a Fentanyl Analogue;

At least 80 KG but less than 100 KG of Marihuana;

At least 16 KG but less than 20 KG of Hashish;

At least 1.6 KG but less than 2 KG of Hashish Oil;

At least 80,000 but less than 100,000 units of Schedule I or
II Depressants;

At least 5,000 but less than 6,250 units of Flunitrazepam.

Level 24

(9)

At least 60 G but less than 80 G of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 300 G but less than 400 G of Cocaine (or the
equivalent amount of other Schedule I or II Stimulants);

At least 3 G but less than 4 G of Cocaine Base;

At least 60 G but less than 80 G of PCP, or at least 6 G but
less than 8 G of PCP (actual);

At least 30 G but less than 40 G of Methamphetamine, or at
least 3 G but less than 4 G of Methamphetamine (actual), or at least 3 G but
less than 4 G of "Ice";

At least 30 G but less than 40 G of Amphetamine, or at least 3
G but less than 4 G of Amphetamine (actual);

At least 600 MG but less than 800 MG of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 24 G but less than 32 G of Fentanyl;

At least 6 G but less than 8 G of a Fentanyl Analogue;

At least 60 KG but less than 80 KG of Marihuana;

At least 12 KG but less than 16 KG of Hashish;

At least 1.2 KG but less than 1.6 KG of Hashish Oil;

At least 60,000 but less than 80,000 units of Schedule I or II
Depressants;

At least 3,750 but less than 5,000 units of Flunitrazepam.

Level 22

(10)

At least 40 G but less than 60 G of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 200 G but less than 300 G of Cocaine (or the
equivalent amount of other Schedule I or II Stimulants);

At least 2 G but less than 3 G of Cocaine Base;

At least 40 G but less than 60 G of PCP, or at least 4 G but
less than 6 G of PCP (actual);

At least 20 G but less than 30 G of Methamphetamine, or at
least 2 G but less than 3 G of Methamphetamine (actual), or at least 2 G but
less than 3 G of "Ice";

At least 20 G but less than 30 G of Amphetamine, or at least 2
G but less than 3 G of Amphetamine (actual);

At least 400 MG but less than 600 MG of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 16 G but less than 24 G of Fentanyl;

At least 4 G but less than 6 G of a Fentanyl Analogue;

At least 40 KG but less than 60 KG of Marihuana;

At least 8 KG but less than 12 KG of Hashish;

At least 800 G but less than 1.2 KG of Hashish Oil;

At least 40,000 but less than 60,000 units of Schedule I or II
Depressants or Schedule III substances;

At least 2,500 but less than 3,750 units of Flunitrazepam.

Level 20

(11)

At least 20 G but less than 40 G of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 100 G but less than 200 G of Cocaine (or the
equivalent amount of other Schedule I or II Stimulants);

At least 1 G but less than 2 G of Cocaine Base;

At least 20 G but less than 40 G of PCP, or at least 2 G but
less than 4 G of PCP (actual);

At least 10 G but less than 20 G of Methamphetamine, or at
least 1 G but less than 2 G of Methamphetamine (actual), or at least 1 G but
less than 2 G of "Ice";

At least 10 G but less than 20 G of Amphetamine, or at least 1
G but less than2 G of Amphetamine (actual);

At least 200 MG but less than 400 MG of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 8 G but less than 16 G of Fentanyl;

At least 2 G but less than 4 G of a Fentanyl Analogue;

At least 20 KG but less than 40 KG of Marihuana;

At least 5 KG but less than 8 KG of Hashish;

At least 500 G but less than 800 G of Hashish Oil;

At least 20,000 but less than 40,000 units of Schedule I or II
Depressants or Schedule III substances;

At least 1,250 but less than 2,500 units of Flunitrazepam.

Level 18

(12)

At least 10 G but less than 20 G of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 50 G but less than 100 G of Cocaine (or the
equivalent amount of other Schedule I or II Stimulants);

At least 500 MG but less than 1 G of Cocaine Base;

At least 10 G but less than 20 G of PCP, or at least 1 G but
less than 2 G of PCP (actual);

At least 5 G but less than 10 G of Methamphetamine, or at
least 500 MG but less than 1 G of Methamphetamine (actual), or at least 500 MG
but less than 1 G of "Ice";

At least 5 G but less than 10 G of Amphetamine, or at least
500 MG but less than 1 G of Amphetamine (actual);

At least 100 MG but less than 200 MG of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 4 G but less than 8 G of Fentanyl;

At least 1 G but less than 2 G of a Fentanyl Analogue;

At least 10 KG but less than 20 KG of Marihuana;

At least 2 KG but less than 5 KG of Hashish;

At least 200 G but less than 500 G of Hashish Oil;

At least 10,000 but less than 20,000 units of Schedule I or II
Depressants or Schedule III substances;

At least 625 but less than 1,250 units of Flunitrazepam.

Level 16

(13)

At least 5 G but less than 10 G of Heroin (or the equivalent
amount of other Schedule I or II Opiates);

At least 25 G but less than 50 G of Cocaine (or the equivalent
amount of other Schedule I or II Stimulants);

At least 250 MG but less than 500 MG of Cocaine Base;

At least 5 G but less than 10 G of PCP, or at least 500 MG but
less than 1 G of PCP (actual);

At least 2.5 G but less than 5 G of Methamphetamine, or at
least 250 MG but less than 500 MG of Methamphetamine (actual), or at least 250
MG but less than 500 MG of "Ice";

At least 2.5 G but less than 5 G of Amphetamine, or at least
250 MG but less than 500 MG of Amphetamine (actual);

At least 50 MG but less than 100 MG of LSD (or the equivalent
amount of other Schedule I or II Hallucinogens);

At least 2 G but less than 4 G of Fentanyl;

At least 500 MG but less than 1 G of a Fentanyl Analogue;

At least 5 KG but less than 10 KG of Marihuana;

At least 1 KG but less than 2 KG of Hashish;

At least 100 G but less than 200 G of Hashish Oil;

At least 5,000 but less than 10,000 units of Schedule I or II
Depressants or Schedule III substances;

At least 312 but less than 625 units of Flunitrazepam.

Level 14

(14)

Less than 5 G of Heroin (or the equivalent amount of other
Schedule I or II Opiates);

Less than 25 G of Cocaine (or the equivalent amount of other
Schedule I or II Stimulants);

Less than 250 MG of Cocaine Base;

Less than 5 G of PCP, or less than 500 MG of PCP (actual);

Less than 2.5 G of Methamphetamine, or less than 250 MG of
Methamphetamine (actual), or less than 250 MG of "Ice";

Less than 2.5 G of Amphetamine, or less than 250 MG of
Amphetamine (actual);

Less than 50 MG of LSD (or the equivalent amount of other
Schedule I or II Hallucinogens);

Less than 2 G of Fentanyl;

Less than 500 MG of a Fentanyl Analogue;

At least 2.5 KG but less than 5 KG of Marihuana;

At least 500 G but less than 1 KG of Hashish;

At least 50 G but less than 100 G of Hashish Oil;

At least 2,500 but less than 5,000 units of Schedule I or II
Depressants or Schedule III substances;

At least 156 but less than 312 units of Flunitrazepam;

40,000 or more units of Schedule IV substances (except
Flunitrazepam).

Level 12

(15)

At least 1 KG but less than 2.5 KG of Marihuana;

At least 200 G but less than 500 G of Hashish;

At least 20 G but less than 50 G of Hashish Oil;

At least 1,000 but less than 2,500 units of Schedule I or II
Depressants or Schedule III substances;

At least 62 but less than 156 units of Flunitrazepam;

At least 16,000 but less than 40,000 units of Schedule IV
substances (except Flunitrazepam).

Level 10

(16)

At least 250 G but less than 1 KG of Marihuana;

At least 50 G but less than 200 G of Hashish;

At least 5 G but less than 20 G of Hashish Oil;

At least 250 but less than 1,000 units of Schedule I or II
Depressants or Schedule III substances;

Less than 62 units of Flunitrazepam;

At least 4,000 but less than 16,000 units of Schedule IV
substances (except Flunitrazepam);

40,000 or more units of Schedule V substances

.

Level 8

(17)

Less than 250 G of Marihuana;

Less than 50 G of Hashish;

Less than 5 G of Hashish Oil;

Less than 250 units of Schedule I or II Depressants or
Schedule III substances;

Less than 4,000 units of Schedule IV substances (except
Flunitrazepam);

Less than 40,000 units of Schedule V substances.

Level 6

*Notes to Drug Quantity Table:

(A) Unless otherwise specified, the weight of a controlled substance set
forth in the table refers to the entire weight of any mixture or substance
containing a detectable amount of the controlled substance. If a mixture or
substance contains more than one controlled substance, the weight of the entire
mixture or substance is assigned to the controlled substance that results in
the greater offense level.

(B) The terms "PCP (actual)", "Amphetamine (actual)", and
"Methamphetamine (actual)" refer to the weight of the controlled substance,
itself, contained in the mixture or substance. For example, a mixture weighing
10 grams containing PCP at 50% purity contains 5 grams of PCP (actual). In the
case of a mixture or substance containing PCP, amphetamine, or methamphetamine,
use the offense level determined by the entire weight of the mixture or
substance, or the offense level determined by the weight of the PCP (actual),
amphetamine (actual), or methamphetamine (actual), whichever is greater.

(C) "Ice," for the purposes of this guideline, means a mixture or
substance containing d-methamphetamine hydrochloride of at least 80%
purity.

(D) "Cocaine base," for the purposes of this guideline, means "crack."
"Crack" is the street name for a form of cocaine base, usually prepared by
processing cocaine hydrochloride and sodium bicarbonate, and usually appearing
in a lumpy, rocklike form.

(E) In the case of an offense involving marihuana plants, treat each
plant, regardless of sex, as equivalent to 100 G of marihuana.
Provided, however, that if the actual weight of the marihuana is
greater, use the actual weight of the marihuana.

(F) In the case of Schedule I or II Depressants, Schedule III substances
(except anabolic steroids), Schedule IV substances, and Schedule V substances,
one "unit" means one pill, capsule, or tablet. If the substance is in liquid
form, one "unit" means 0.5 gm.

(G) In the case of anabolic steroids, one "unit" means a 10 cc vial of
an injectable steroid or fifty tablets. All vials of injectable steroids are to
be converted on the basis of their volume to the equivalent number of 10 cc
vials (e.g., one 50 cc vial is to be counted as five 10 cc vials).

(H) In the case of LSD on a carrier medium (e.g., a sheet of
blotter paper), do not use the weight of the LSD/carrier medium. Instead, treat
each dose of LSD on the carrier medium as equal to 0.4 mg of LSD for the
purposes of the Drug Quantity Table.

(I) Hashish, for the purposes of this guideline, means a resinous
substance of cannabis that includes (i) one or more of the
tetrahydrocannabinols (as listed in 21 C.F.R. § 1308.11(d)(25)), (ii)
at least two of the following: cannabinol, cannabidiol, or cannabichromene, and
(iii) fragments of plant material (such as cystolith fibers).

(J) Hashish oil, for the purposes of this guideline, means a preparation
of the soluble cannabinoids derived from cannabis that includes (i) one or more
of the tetrahydrocannabinols (as listed in 21C.F.R.
§ 1308.11(d)(25)), (ii) at least two of the following: cannabinol,
cannabidiol, or cannabichromene, and (iii) is essentially free of plant
material (e.g., plant fragments). Typically, hashish oil is a viscous,
dark colored oil, but it can vary from a dry resin to a colorless liquid.

1."Mixture or substance" as used in this guideline has the same
meaning as in 21 U.S.C. § 841, except as expressly
provided. Mixture or substance does not include materials that must be
separated from the controlled substance before the controlled substance can be
used. Examples of such materials include the fiberglass in a cocaine/fiberglass
bonded suitcase, beeswax in a cocaine/beeswax statue, and waste water from an
illicit laboratory used to manufacture a controlled substance. If such material
cannot readily be separated from the mixture or substance that appropriately is
counted in the Drug Quantity Table, the court may use any reasonable method to
approximate the weight of the mixture or substance to be counted.

An upward departure nonetheless may be warranted when the mixture or
substance counted in the Drug Quantity Table is combined with other,
non-countable material in an unusually sophisticated manner in order to avoid
detection.

Similarly, in the case of marihuana having a moisture content that
renders the marihuana unsuitable for consumption without drying (this might
occur, for example, with a bale of rain-soaked marihuana or freshly harvested
marihuana that had not been dried), an approximation of the weight of the
marihuana without such excess moisture content is to be used.

2. The statute and guideline also apply to "counterfeit" substances,
which are defined in 21 U.S.C. § 802 to mean controlled
substances that are falsely labeled so as to appear to have been legitimately
manufactured or distributed.

3. Definitions of "firearm" and "dangerous weapon" are found in the
Commentary to §1B1.1 (Application Instructions). The enhancement for
weapon possession reflects the increased danger of violence when drug
traffickers possess weapons. The adjustment should be applied if the weapon was
present, unless it is clearly improbable that the weapon was connected with the
offense. For example, the enhancement would not be applied if the defendant,
arrested at his residence, had an unloaded hunting rifle in the closet. The
enhancement also applies to offenses that are referenced to §2D1.1; see
§§2D1.2(a)(1) and (2), 2D1.5(a)(1), 2D1.6, 2D1.7(b)(1), 2D1.8,
2D1.11(c)(1), 2D1.12(c)(1), and 2D2.1(b)(1).

4. Distribution of "a small amount of marihuana for no remuneration",
21 U.S.C. § 841(b)(4), is treated as simple possession, to which
§2D2.1 applies.

5. Any reference to a particular controlled substance in these
guidelines includes all salts, isomers, and all salts of isomers. Any reference
to cocaine includes ecgonine and coca leaves, except extracts of coca leaves
from which cocaine and ecgonine have been removed.

6. Where there are multiple transactions or multiple drug types, the
quantities of drugs are to be added. Tables for making the necessary
conversions are provided below.

7. Where a mandatory (statutory) minimum sentence applies, this
mandatory minimum sentence may be "waived" and a lower sentence imposed
(including a sentence below the applicable guideline range), as provided in 28
U.S.C. § 994(n), by reason of a defendants "substantial
assistance in the investigation or prosecution of another person who has
committed an offense." See §5K1.1 (Substantial Assistance to Authorities).
In addition, 18 U.S.C. § 3553(f) provides an exception to the
applicability of mandatory minimum sentences in certain cases. See
§5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in
Certain Cases).

8. A defendant who used special skills in the commission of the
offense may be subject to an enhancement under §3B1.3 (Abuse of Position
of Trust or Use of Special Skill). Certain professionals often occupy essential
positions in drug trafficking schemes. These professionals include doctors,
pilots, boat captains, financiers, bankers, attorneys, chemists, accountants,
and others whose special skill, trade, profession, or position may be used to
significantly facilitate the commission of a drug offense.

Note, however, that if an adjustment from subsection (b)(2)(B)
applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special
Skill).

9. Trafficking in controlled substances, compounds, or mixtures of
unusually high purity may warrant an upward departure, except in the case of
PCP, amphetamine, or methamphetamine for which the guideline itself provides
for the consideration of purity (see the footnote to the Drug Quantity
Table). The purity of the controlled substance, particularly in the case of
heroin, may be relevant in the sentencing process because it is probative of
the defendants role or position in the chain of distribution. Since
controlled substances are often diluted and combined with other substances as
they pass down the chain of distribution, the fact that a defendant is in
possession of unusually pure narcotics may indicate a prominent role in the
criminal enterprise and proximity to the source of the drugs. As large
quantities are normally associated with high purities, this factor is
particularly relevant where smaller quantities are involved.

10. The Commission has used the sentences provided in, and
equivalences derived from, the statute (21 U.S.C. § 841(b)(1)), as the
primary basis for the guideline sentences. The statute, however, provides
direction only for the more common controlled substances, i.e., heroin,
cocaine, PCP, methamphetamine, fentanyl, LSD and marihuana. The Drug
Equivalency Tables set forth below provide conversion factors for other
substances, which the Drug Quantity Table refers to as "equivalents" of these
drugs. For example, one gram of a substance containing oxymorphone, a Schedule
I opiate, is to be treated as the equivalent of five kilograms of marihuana in
applying the Drug Quantity Table.

The Drug Equivalency Tables also provide a means for combining
differing controlled substances to obtain a single offense level. In each case,
convert each of the drugs to its marihuana equivalent, add the quantities, and
look up the total in the Drug Quantity Table to obtain the combined offense
level.

For certain types of controlled substances, the marihuana
equivalencies in the Drug Equivalency Tables are "capped" at specified amounts
(e.g., the combined equivalent weight of all Schedule V controlled
substances shall not exceed 999 grams of marihuana). Where there are controlled
substances from more than one schedule (e.g., a quantity of a Schedule
IV substance and a quantity of a Schedule V substance), determine the marihuana
equivalency for each schedule separately (subject to the cap, if any,
applicable to that schedule). Then add the marihuana equivalencies to determine
the combined marihuana equivalency (subject to the cap, if any, applicable to
the combined amounts).

Note: Because of the statutory equivalences, the ratios in the
Drug Equivalency Tables do not necessarily reflect dosages based on
pharmacological equivalents.

Examples:

a. The defendant is convicted of selling 70 grams of a substance
containing PCP (Level 22) and 250 milligrams of a substance containing LSD
(Level 18). The PCP converts to 70 kilograms of marihuana; the LSD
converts to 25 kilograms of marihuana. The total is therefore equivalent to 95
kilograms of marihuana, for which the Drug Quantity Table provides an offense
level of 24.

b. The defendant is convicted of selling 500 grams of marihuana
(Level 8) and five kilograms of diazepam (Level 8). The diazepam, a Schedule IV
drug, is equivalent to 625 grams of marihuana. The total, 1.125 kilograms of
marihuana, has an offense level of 10 in the Drug Quantity Table.

c. The defendant is convicted of selling 80 grams of cocaine (Level
16) and five kilograms of marihuana (Level 14). The cocaine is equivalent to 16
kilograms of marihuana. The total is therefore equivalent to 21 kilograms of
marihuana, which has an offense level of 18 in the Drug Quantity Table.

d. The defendant is convicted of selling 56,000 units of a Schedule
III substance, 100,000 units of a Schedule IV substance, and 200,000 units of a
Schedule V substance. The marihuana equivalency for the Schedule III substance
is 56 kilograms of marihuana (below the cap of 59.99 kilograms of marihuana set
forth as the maximum equivalent weight for Schedule III substances). The
marihuana equivalency for the Schedule IV substance is subject to a cap of 4.99
kilograms of marihuana set forth as the maximum equivalent weight for Schedule
IV substances (without the cap it would have been 6.25 kilograms). The
marihuana equivalency for the Schedule V substance is subject to the cap of 999
grams of marihuana set forth as the maximum equivalent weight for Schedule V
substances (without the cap it would have been 1.25 kilograms). The combined
equivalent weight, determined by adding together the above amounts, is subject
to the cap of 59.99 kilograms of marihuana set forth as the maximum combined
equivalent weight for Schedule III, IV, and V substances. Without the cap, the
combined equivalent weight would have been 61.99 (56 + 4.99 + .999)
kilograms.

*Provided, that the minimum offense level
from the Drug Quantity Table for any of these controlled substances
individually, or in combination with another controlled substance, is level
12.

LSD, PCP, and Other Schedule I and II Hallucinogens (and their
immediate precursors)*

1
gm of Bufotenine =

70
gm of marihuana

1
gm of D-Lysergic Acid Diethylamide/Lysergide/LSD =

100
kg of marihuana

1
gm of Diethyltryptamine/DET =

80
gm of marihuana

1
gm of Dimethyltryptamine/DMT =

100
gm of marihuana

1
gm of Mescaline =

10
gm of marihuana

1
gm of Mushrooms containing Psilocin and/or Psilocybin (Dry) =

1
gm of marihuana

1
gm of Mushrooms containing Psilocin and/or

Psilocybin (Wet) =

0.1
gm of marihuana

1
gm of Peyote (Dry) =

0.5
gm of marihuana

1
gm of Peyote (Wet) =

0.05 gm of marihuana

1
gm of Phencyclidine/PCP =

1
kg of marihuana

1
gm of Phencyclidine (actual) /PCP (actual) =

10
kg of marihuana

1
gm of Psilocin =

500
gm of marihuana

1
gm of Psilocybin =

500
gm of marihuana

1
gm of Pyrrolidine Analog of Phencyclidine/PHP =

1
kg of marihuana

1
gm of Thiophene Analog of Phencyclidine/TCP =

1
kg of marihuana

1
gm of 4-Bromo-2,5-Dimethoxyamphetamine/DOB =

2.5
kg of marihuana

1
gm of 2,5-Dimethoxy-4-methylamphetamine/DOM =

1.67 kg of marihuana

1
gm of 3,4-Methylenedioxyamphetamine/MDA =

500
gm of marihuana

1
gm of 3,4-Methylenedioxymethamphetamine/MDMA =

500
gm of marihuana

1
gm of 3,4-Methylenedioxy-N-ethylamphetamine/MDEA=

500
gm of marihuana

1
gm of Paramethoxymethamphetamine/PMA =

500
gm of marihuana

1
gm of 1-Piperidinocyclohexanecarbonitrile/PCC =

680
gm of marihuana

1
gm of N-ethyl-1-phenylcyclohexylamine (PCE) =

1
kg of marihuana

*Provided, that the minimum offense level from the Drug
Quantity Table for any of these controlled substances individually, or in
combination with another controlled substance, is level 12.

Schedule I Marihuana

1
gm of Marihuana/Cannabis, granulated, powdered, etc. =

1
gm of marihuana

1
gm of Hashish Oil =

50
gm of marihuana

1
gm of Cannabis Resin or Hashish =

5
gm of marihuana

1
gm of Tetrahydrocannabinol, Organic =

167
gm of marihuana

1
gm of Tetrahydrocannabinol, Synthetic =

167
gm of marihuana

Flunitrazepam **

1
unit of Flunitrazepam =

16
gm of marihuana

**Provided, that the minimum offense level from the Drug
Quantity Table for flunitrazepam individually, or in combination with any
Schedule I or II depressants, Schedule III substances, Schedule IV substances,
and Schedule V substances is level 8.

List I Chemicals (relating to the manufacture of amphetamine or
methamphetamine )******

1
gm of Ephedrine =

10
kg of marihuana

1
gm of Phenylpropanolamine =

10
kg of marihuana

1
gm of Pseudoephedrine =

10
kg of marihuana

******Provided, that in a case involving ephedrine,
pseudoephedrine, or phenylpropanolamine tablets, use the weight of the
ephedrine, pseudoephedrine, or phenylpropanolamine contained in the tablets,
not the weight of the entire tablets, in calculating the base offense level.

To facilitate conversions to drug equivalencies, the following table
is provided:

MEASUREMENT CONVERSION TABLE

1 oz = 28.35 gm

1 lb = 453.6 gm

1 lb = 0.4536 kg

1 gal = 3.785 liters

1 qt = 0.946 liters

1 gm = 1 ml (liquid)

1 liter = 1,000 ml

1 kg = 1,000 gm

1 gm = 1,000 mg

1 grain = 64.8 mg.

11. If the number of doses, pills, or capsules but not the weight of
the controlled substance is known, multiply the number of doses, pills, or
capsules by the typical weight per dose in the table below to estimate the
total weight of the controlled substance (e.g., 100 doses of Mescaline
at 500 mg per dose = 50 gms of mescaline). The Typical Weight Per Unit
Table, prepared from information provided by the Drug Enforcement
Administration, displays the typical weight per dose, pill, or capsule for
certain controlled substances. Do not use this table if any more reliable
estimate of the total weight is available from case-specific
information.

TYPICAL WEIGHT PER UNIT (DOSE, PILL, OR CAPSULE)
TABLE

Hallucinogens

MDA*

100 mg

Mescaline

500 mg

PCP*

5 mg

Peyote (dry)

12 gm

Peyote (wet)

120 gm

Psilocin*

10 mg

Psilocybe
mushrooms (dry)

5 gm

Psilocybe
mushrooms (wet)

50 gm

Psilocybin*

10 mg

2,5-Dimethoxy-4-methylamphetamine (STP,DOM)*

3 mg

Marihuana

1 marihuana
cigarette

0.5 gm

Stimulants

Amphetamine*

10 mg

Methamphetamine*

5 mg

Phenmetrazine
(Preludin)*

75 mg

*For controlled substances marked with an asterisk, the weight per
unit shown is the weight of the actual controlled substance, and not generally
the weight of the mixture or substance containing the controlled substance.
Therefore, use of this table provides a very conservative estimate of the total
weight.

12. Types and quantities of drugs not specified in the count of
conviction may be considered in determining the offense level. See
§1B1.3(a)(2) (Relevant Conduct). Where there is no drug seizure or the
amount seized does not reflect the scale of the offense, the court shall
approximate the quantity of the controlled substance. In making this
determination, the court may consider, for example, the price generally
obtained for the controlled substance, financial or other records, similar
transactions in controlled substances by the defendant, and the size or
capability of any laboratory involved.

If the offense involved both a substantive drug offense and an
attempt or conspiracy (e.g., sale of five grams of heroin and an attempt
to sell an additional ten grams of heroin), the total quantity involved shall
be aggregated to determine the scale of the offense.

In an offense involving an agreement to sell a controlled substance,
the agreed-upon quantity of the controlled substance shall be used to determine
the offense level unless the sale is completed and the amount delivered more
accurately reflects the scale of the offense. For example, a defendant agrees
to sell 500 grams of cocaine, the transaction is completed by the delivery of
the controlled substance - actually 480 grams of cocaine, and no further
delivery is scheduled. In this example, the amount delivered more accurately
reflects the scale of the offense. In contrast, in a reverse sting, the
agreed-upon quantity of the controlled substance would more accurately reflect
the scale of the offense because the amount actually delivered is controlled by
the government, not by the defendant. If, however, the defendant establishes
that he or she did not intend to provide, or was not reasonably capable of
providing, the agreed-upon quantity of the controlled substance, the court
shall exclude from the offense level determination the amount of controlled
substance that the defendant establishes that he or she did not intend to
provide or was not reasonably capable of providing.

13. Certain pharmaceutical preparations are classified as Schedule
III, IV, or V controlled substances by the Drug Enforcement Administration
under 21 C.F.R. § 1308.13-15 even though they contain a small amount of a
Schedule I or II controlled substance. For example, Tylenol 3 is classified as
a Schedule III controlled substance even though it contains a small amount of
codeine, a Schedule II opiate. For the purposes of the guidelines, the
classification of the controlled substance under 21 C.F.R. § 1308.13-15 is
the appropriate classification.

14. If, in a reverse sting (an operation in which a government agent
sells or negotiates to sell a controlled substance to a defendant), the court
finds that the government agent set a price for the controlled substance that
was substantially below the market value of the controlled substance, thereby
leading to the defendants purchase of a significantly greater quantity of
the controlled substance than his available resources would have allowed him to
purchase except for the artificially low price set by the government agent, a
downward departure may be warranted.

15. LSD on a blotter paper carrier medium typically is marked so that
the number of doses ("hits") per sheet readily can be determined. When this is
not the case, it is to be presumed that each 1/4 inch by 1/4 inch section of
the blotter paper is equal to one dose.

In the case of liquid LSD (LSD that has not been placed onto a
carrier medium), using the weight of the LSD alone to calculate the offense
level may not adequately reflect the seriousness of the offense. In such a
case, an upward departure may be warranted.

16. In an extraordinary case, an upward departure above offense level
38 on the basis of drug quantity may be warranted. For example, an upward
departure may be warranted where the quantity is at least ten times the minimum
quantity required for level 38. Similarly, in the case of a controlled
substance for which the maximum offense level is less than level 38, an upward
departure may be warranted if the drug quantity substantially exceeds the
quantity for the highest offense level established for that particular
controlled substance.

17. For purposes of the guidelines, a "plant" is an organism having
leaves and a readily observable root formation (e.g., a marihuana
cutting having roots, a rootball, or root hairs is a marihuana plant).

18. If the offense involved importation of amphetamine or
methamphetamine, and an adjustment from subsection (b)(2) applies, do not apply
subsection (b)(4).

19. Hazardous or Toxic Substances.Subsection (b)(5)(A)
applies if the conduct for which the defendant is accountable under §1B1.3
(Relevant Conduct) involved any discharge, emission, release, transportation,
treatment, storage, or disposal violation covered by the Resource Conservation
and Recovery Act, 42 U.S.C. § 6928(d); the Federal Water Pollution
Control Act, 33 U.S.C. § 1319(c); the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. § 9603(b); or 49
U.S.C. § 5124 (relating to violations of laws and regulations enforced by
the Department of Transportation with respect to the transportation of
hazardous material). In some cases, the enhancement under subsection (b)(5)(A)
may not account adequately for the seriousness of the environmental harm or
other threat to public health or safety (including the health or safety of law
enforcement and cleanup personnel). In such cases, an upward departure may be
warranted. Additionally, in determining the amount of restitution under
§5E1.1 (Restitution) and in fashioning appropriate conditions of probation
and supervision under §§5B1.3 (Conditions of Probation) and 5D1.3
(Conditions of Supervised Release), respectively, any costs of environmental
cleanup and harm to individuals or property shall be considered by the court in
cases involving the manufacture of amphetamine or methamphetamine and should be
considered by the court in cases involving the manufacture of a controlled
substance other than amphetamine or methamphetamine. See 21 U.S.C.
§ 853(q) (mandatory restitution for cleanup costs relating to the
manufacture of amphetamine and methamphetamine).

20. Substantial Risk of Harm Associated with the Manufacture of
Amphetamine and Methamphetamine.

(A) Factors to Consider.In determining, for purposes of
subsection (b)(5)(B) or (C), whether the offense created a substantial risk of
harm to human life or the environment, the court shall include consideration of
the following factors:

(i) The quantity of any chemicals or hazardous or toxic substances
found at the laboratory, and the manner in which the chemicals or substances
were stored.

(ii) The manner in which hazardous or toxic substances were
disposed, and the likelihood of release into the environment of hazardous or
toxic substances.

(iii) The duration of the offense, and the extent of the
manufacturing operation.

(iv) The location of the laboratory (e.g., whether the
laboratory is located in a residential neighborhood or a remote area), and the
number of human lives placed at substantial risk of harm.

(B) Definitions.For purposes of subsection
(b)(5)(C):

"Incompetent" means an individual who is incapable of taking care of
the individuals self or property because of a mental or physical illness
or disability, mental retardation, or senility.

"Minor" has the meaning given that term in Application Note 1 of the
Commentary to §2A3.1 (Criminal Sexual Abuse).

Background: Offenses under 21 U.S.C. §§ 841 and 960
receive identical punishment based upon the quantity of the controlled
substance involved, the defendants criminal history, and whether death or
serious bodily injury resulted from the offense.

The base offense levels in §2D1.1 are either provided directly
by the Anti-Drug Abuse Act of 1986 or are proportional to the levels
established by statute, and apply to all unlawful trafficking. Levels 32 and 26
in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse
Act; however, further refinement of drug amounts is essential to provide a
logical sentencing structure for drug offenses. To determine these finer
distinctions, the Commission consulted numerous experts and practitioners,
including authorities at the Drug Enforcement Administration, chemists,
attorneys, probation officers, and members of the Organized Crime Drug
Enforcement Task Forces, who also advocate the necessity of these distinctions.
Where necessary, this scheme has been modified in response to specific
congressional directives to the Commission.

The base offense levels at levels 26 and 32 establish guideline
ranges with a lower limit as close to the statutory minimum as possible;
e.g., level 32 ranges from 121 to 151 months, where the statutory
minimum is ten years or 120 months.

For marihuana plants, the Commission has adopted an equivalency of
100 grams per plant, or the actual weight of the usable marihuana, whichever is
greater. The decision to treat each plant as equal to 100 grams is premised on
the fact that the average yield from a mature marihuana plant equals 100 grams
of marihuana. In controlled substance offenses, an attempt is assigned the same
offense level as the object of the attempt. Consequently, the Commission
adopted the policy that each plant is to be treated as the equivalent of an
attempt to produce 100 grams of marihuana, except where the actual weight of
the usable marihuana is greater.

Specific Offense Characteristic (b)(2) is derived from Section 6453
of the Anti-Drug Abuse Act of 1988.

Frequently, a term of supervised release to follow imprisonment is
required by statute for offenses covered by this guideline. Guidelines for the
imposition, duration, and conditions of supervised release are set forth in
Chapter Five, Part D (Supervised Release).

Because the weights of LSD carrier media vary widely and typically
far exceed the weight of the controlled substance itself, the Commission has
determined that basing offense levels on the entire weight of the LSD and
carrier medium would produce unwarranted disparity among offenses involving the
same quantity of actual LSD (but different carrier weights), as well as
sentences disproportionate to those for other, more dangerous controlled
substances, such as PCP.

Consequently, in cases involving LSD contained in a carrier medium,
the Commission has established a weight per dose of 0.4 milligram for purposes
of determining the base offense level.

The dosage weight of LSD selected exceeds the Drug Enforcement
Administrations standard dosage unit for LSD of 0.05 milligram
(i.e., the quantity of actual LSD per dose) in order to assign some
weight to the carrier medium. Because LSD typically is marketed and consumed
orally on a carrier medium, the inclusion of some weight attributable to the
carrier medium recognizes (A) that offense levels for most other controlled
substances are based upon the weight of the mixture containing the controlled
substance without regard to purity, and (B) the decision in Chapman v.
United States, 111 S.Ct. 1919 (1991) (holding that the term "mixture or
substance" in 21 U.S.C. § 841(b)(1) includes the carrier medium
in which LSD is absorbed). At the same time, the weight per dose selected is
less than the weight per dose that would equate the offense level for LSD on a
carrier medium with that for the same number of doses of PCP, a controlled
substance that comparative assessments indicate is more likely to induce
violent acts and ancillary crime than is LSD. (Treating LSD on a carrier medium
as weighing 0.5 milligram per dose would produce offense levels equivalent to
those for PCP.) Thus, the approach decided upon by the Commission will
harmonize offense levels for LSD offenses with those for other controlled
substances and avoid an undue influence of varied carrier weight on the
applicable offense level. Nonetheless, this approach does not override the
applicability of "mixture or substance" for the purpose of applying any
mandatory minimum sentence (seeChapman; §5G1.1(b)).

Subsection (b)(5)(A) implements the instruction to the Commission in
section 303 of Public Law 103237.

Subsections (b)(5)(B) and (C) implement, in a broader form, the
instruction to the Commission in section 102 of Public Law
106310.

1.This guideline applies only in a case in which the defendant is
convicted of a statutory violation of drug trafficking in a protected location
or involving an underage or pregnant individual (including an attempt or
conspiracy to commit such a violation) or in a case in which the defendant
stipulated to such a statutory violation. See §1B1.2(a). In a case
involving such a conviction but in which only part of the relevant offense
conduct directly involved a protected location or an underage or pregnant
individual, subsections (a)(1) and (a)(2) may result in different offense
levels. For example, if the defendant, as part of the same course of conduct or
common scheme or plan, sold 5 grams of heroin near a protected location and 10
grams of heroin elsewhere, the offense level from subsection (a)(1) would be
level 16 (2 plus the offense level for the sale of 5 grams of heroin, the
amount sold near the protected location); the offense level from subsection
(a)(2) would be level 17 (1 plus the offense level for the sale of 15 grams of
heroin, the total amount of heroin involved in the offense).

Background: This section implements the direction to the
Commission in Section 6454 of the Anti-Drug Abuse Act of 1988.

(1) 4 plus the offense level from §2D1.1 applicable to the
underlying offense; or

(2) 38.

Commentary

Statutory Provision: 21 U.S.C. § 848.

Application Notes:

1.Do not apply any adjustment from Chapter Three, Part B (Role in the
Offense).

2. If as part of the enterprise the defendant sanctioned the use of
violence, or if the number of persons managed by the defendant was extremely
large, an upward departure may be warranted.

3. Under 21 U.S.C. § 848, certain conduct for which the
defendant has previously been sentenced may be charged as part of the instant
offense to establish a "continuing series of violations." A sentence resulting
from a conviction sustained prior to the last overt act of the instant offense
is to be considered a prior sentence under §4A1.2(a)(1) and not part of
the instant offense.

4. Violations of 21 U.S.C. § 848 will be grouped with
other drug offenses for the purpose of applying Chapter Three, Part D (Multiple
Counts).

Background: Because a conviction under
21 U.S.C. § 848 establishes that a defendant controlled and
exercised authority over one of the most serious types of ongoing criminal
activity, this guideline provides a minimum base offense level of 38. An
adjustment from Chapter Three, Part B is not authorized because the offense
level of this guideline already reflects an adjustment for role in the
offense.

Title 21 U.S.C. § 848 provides a 20-year minimum
mandatory penalty for the first conviction, a 30-year minimum mandatory penalty
for a second conviction, and a mandatory life sentence for principal
administrators of extremely large enterprises. If the application of the
guidelines results in a sentence below the minimum sentence required by
statute, the statutory minimum shall be the guideline sentence. See
§5G1.1(b).

1.Where the offense level for the underlying offense is to be
determined by reference to §2D1.1, see Application Note 12 of the
Commentary to §2D1.1 for guidance in determining the scale of the offense.
Note that the Drug Quantity Table in §2D1.1 provides a minimum offense
level of 12 where the offense involves heroin (or other Schedule I or II
opiates), cocaine (or other Schedule I or II stimulants), cocaine base, PCP,
methamphetamine, LSD (or other Schedule I or II hallucinogens), fentanyl, or
fentanyl analogue (§2D1.1(c)(14)); and a minimum offense level of 6
otherwise (§2D1.1(c)(17)).

Background: This section covers the use of a communication
facility in committing a drug offense. A communication facility includes any
public or private instrument used in the transmission of writing, signs,
signals, pictures, and sound; e.g., telephone, wire, radio.

(1)If the offense involved a controlled substance, apply §2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking) or §2D2.1
(Unlawful Possession), as appropriate, if the resulting offense level is
greater than that determined above.

Commentary

Statutory Provision: 21 U.S.C. § 863 (formerly 21 U.S.C.
§ 857).

Application Note:

1. The typical case addressed by this guideline involves small-scale
trafficking in drug paraphernalia (generally from a retail establishment that
also sells items that are not unlawful). In a case involving a large-scale
dealer, distributor, or manufacturer, an upward departure may be warranted.
Conversely, where the offense was not committed for pecuniary gain
(e.g., transportation for the defendants personal use), a downward
departure may be warranted.

(2) If the defendant had no participation in the underlying controlled
substance offense other than allowing use of the premises, the offense level
shall be 4 levels less than the offense level from §2D1.1 applicable to
the underlying controlled substance offense, but not greater than level 16.

(b)Special Instruction

(1) If the offense level is determined under subsection (a)(2), do not
apply an adjustment under §3B1.2 (Mitigating Role).

Commentary

Statutory Provision: 21 U.S.C. § 856.

Application Note:

1. Subsection (a)(2) does not apply unless the defendant had no
participation in the underlying controlled substance offense other than
allowing use of the premises. For example, subsection (a)(2) would not apply to
a defendant who possessed a dangerous weapon in connection with the offense, a
defendant who guarded the cache of controlled substances, a defendant who
arranged for the use of the premises for the purpose of facilitating a drug
transaction, a defendant who allowed the use of more than one premises, a
defendant who made telephone calls to facilitate the underlying controlled
substance offense, or a defendant who otherwise assisted in the commission of
the underlying controlled substance offense. Furthermore, subsection (a)(2)
does not apply unless the defendant initially leased, rented, purchased, or
otherwise acquired a possessory interest in the premises for a legitimate
purpose. Finally, subsection (a)(2) does not apply if the defendant had
previously allowed any premises to be used as a drug establishment without
regard to whether such prior misconduct resulted in a conviction.

Background: This section covers the offense of knowingly
opening, maintaining, managing, or controlling any building, room, or enclosure
for the purpose of manufacturing, distributing, storing, or using a controlled
substance contrary to law (e.g., a "crack house").

§2D1.9. Placing or Maintaining Dangerous Devices on Federal
Property to Protect the Unlawful Production of Controlled Substances; Attempt
or Conspiracy

(a) Base Offense Level: 23

Commentary

Statutory Provision: 21 U.S.C. § 841(e)(1).

Background: This section covers the offense of assembling,
placing, or causing to be placed, or maintaining a "booby-trap" on federal
property where a controlled substance is being manufactured or distributed.

§2D1.10. Endangering Human Life While Illegally Manufacturing
a Controlled Substance; Attempt or Conspiracy

(a)Base Offense Level (Apply the greater):

(1) 3 plus the offense level from the Drug Quantity Table in
§2D1.1; or

(2) 20.

(b)Specific Offense Characteristic

(1) (Apply the greater):

(A) If the offense involved the manufacture of amphetamine or
methamphetamine, increase by 3 levels. If the resulting offense level is less
than level 27, increase to level 27.

(B) If the offense (i) involved the manufacture of amphetamine or
methamphetamine; and (ii) created a substantial risk of harm to the life of a
minor or an incompetent, increase by 6 levels. If the resulting offense level
is less than level 30, increase to level 30.

Commentary

Statutory Provision: 21 U.S.C. § 858.

Application Note:

1. Substantial Risk of Harm Associated with the Manufacture of
Amphetamine and Methamphetamine.

(A) Factors to Consider. In determining, for purposes of
subsection (b)(1)(B), whether the offense created a substantial risk of harm to
the life of a minor or an incompetent, the court shall include consideration of
the following factors:

(i) The quantity of any chemicals or hazardous or toxic substances
found at the laboratory, and the manner in which the chemicals or substances
were stored.

(ii) The manner in which hazardous or toxic substances were
disposed, and the likelihood of release into the environment of hazardous or
toxic substances.

(iii) The duration of the offense, and the extent of the
manufacturing operation.

(iv) The location of the laboratory (e.g., whether the
laboratory is located in a residential neighborhood or a remote area), and the
number of human lives placed at substantial risk of harm.

(B)Definitions.For purposes of subsection
(b)(1)(B):

"Incompetent" means an individual who is incapable of taking care of
the individuals self or property because of a mental or physical illness
or disability, mental retardation, or senility.

"Minor" has the meaning given that term in Application Note 1 of the
Commentary to §2A3.1 (Criminal Sexual Abuse).

Background: Subsection (b)(1) implements the instruction to
the Commission in section 102 of Public Law 106310.

(1) If a dangerous weapon (including a firearm) was possessed,
increase by 2 levels.

(2) If the defendant is convicted of violating 21 U.S.C.
§§ 841(d)(2), (g)(1), or 960(d)(2), decrease by 3 levels, unless
the defendant knew or believed that the listed chemical was to be used to
manufacture a controlled substance unlawfully.

(3) If the offense involved (A) an unlawful discharge, emission, or
release into the environment of a hazardous or toxic substance; or (B) the
unlawful transportation, treatment, storage, or disposal of a hazardous waste,
increase by 2 levels.

(c)Cross Reference

(1) If the offense involved unlawfully manufacturing a controlled
substance, or attempting to manufacture a controlled substance unlawfully,
apply §2D1.1 (Unlawful Manufacturing, Importing, Exporting, Trafficking)
if the resulting offense level is greater than that determined
above.

1The reference to "subsection (d) below"
should be a reference to "subsection (d) or (e) below, as
appropriate."

At least 120 KG but
less than 400 KG of 3, 4 Methylenedioxyphenyl-2-propanone;

At least 3,000 KG
but less than 10,000 KG of Gamma-butyrolactone;

List II
Chemicals

11 KG or more of
Acetic Anhydride;

1175 KG or more of
Acetone;

20 KG or more of
Benzyl Chloride;

1075 KG or more of
Ethyl Ether;

1200 KG or more of
Methyl Ethyl Ketone;

10 KG or more of
Potassium Permanganate;

1300 KG or more of
Toluene;

376.2 G or more of
Iodine.

(3)

List I Chemicals

Level 26

At least 89 G but
less than 267 G of Benzaldehyde;

At least 2 KG but
less than 6 KG of Benzyl Cyanide;

At least 20 G but
less than 60 G of Ergonovine;

At least 40 G but
less than 120 G of Ergotamine;

At least 2 KG but
less than 6 KG of Ethylamine;

At least 220 G but
less than 660 G of Hydriodic Acid;

At least 32 KG but
less than 96 KG of Isosafrole;

At least 20 G but
less than 60 G of Methylamine;

At least 50 KG but
less than 150 KG of N-Methylephedrine;

At least 50 KG but
less than 150 KG of Methylpseudoephedrine;

At least 62.5 G but
less than 187.5 G of Nitroethane;

At least 1 KG but
less than 3 KG of Norpseudoephedrine;

At least 2 KG but
less than 6 KG of Phenylacetic Acid;

At least 1 KG but
less than 3 KG of Piperidine;

At least 32 KG but
less than 96 KG of Piperonal;

At least 160 G but
less than 480 G of Propionic Anhydride;

At least 32 KG but
less than 96 KG of Safrole;

At least 40 KG but
less than 120 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

At least 1,000 KG
but less than 3,000 KG of Gamma-butyrolactone;

List II
Chemicals

At least 3.3 KG but
less than 11 KG of Acetic Anhydride;

At least 352.5 KG
but less than 1175 KG of Acetone;

At least 6 KG but
less than 20 KG of Benzyl Chloride;

At least 322.5 KG
but less than 1075 KG of Ethyl Ether;

At least 360 KG but
less than 1200 KG of Methyl Ethyl Ketone;

At least 3 KG but
less than 10 KG of Potassium Permanganate;

At least 390 KG but
less than 1300 KG of Toluene;

At least 125.4 G
but less than 376.2 G of Iodine.

(4)

List I Chemicals

Level 24

At least 62.3 G but
less than 89 G of Benzaldehyde;

At least 1.4 KG but
less than 2 KG of Benzyl Cyanide;

At least 14 G but
less than 20 G of Ergonovine;

At least 28 G but
less than 40 G of Ergotamine;

At least 1.4 KG but
less than 2 KG of Ethylamine;

At least 154 G but
less than 220 G of Hydriodic Acid;

At least 22.4 KG
but less than 32 KG of Isosafrole;

At least 14 G but
less than 20 G of Methylamine;

At least 35 KG but
less than 50 KG of N-Methylephedrine;

At least 35 KG but
less than 50 KG of N-Methylpseudoephedrine;

At least 43.8 G but
less than 62.5 G of Nitroethane;

At least 700 G but
less than 1 KG of Norpseudoephedrine;

At least 1.4 KG but
less than 2 KG of Phenylacetic Acid;

At least 700 G but
less than 1 KG of Piperidine;

At least 22.4 KG
but less than 32 KG of Piperonal;

At least 112 G but
less than 160 G of Propionic Anhydride;

At least 22.4 KG
but less than 32 KG of Safrole;

At least 28 KG but
less than 40 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

At least 700 KG but
less than 1,000 KG of Gamma-butyrolactone;

List II
Chemicals

At least 1.1 KG but
less than 3.3 KG of Acetic Anhydride;

At least 117.5 KG
but less than 352.5 KG of Acetone;

At least 2 KG but
less than 6 KG of Benzyl Chloride;

At least 107.5 KG
but less than 322.5 KG of Ethyl Ether;

At least 120 KG but
less than 360 KG of Methyl Ethyl Ketone;

At least 1 KG but
less than 3 KG of Potassium Permanganate;

At least 130 KG but
less than 390 KG of Toluene;

At least 87.8 G but
less than 125.4 G of Iodine.

(5)

List I
Chemicals

Level 22

At least 35.6 G but
less than 62.3 G of Benzaldehyde;

At least 800 G but
less than 1.4 KG of Benzyl Cyanide;

At least 8 G but
less than 14 G of Ergonovine;

At least 16 G but
less than 28 G of Ergotamine;

At least 800 G but
less than 1.4 KG of Ethylamine;

At least 88 G but
less than 154 G of Hydriodic Acid;

At least 12.8 KG
but less than 22.4 KG of Isosafrole;

At least 8 G but
less than 14 G of Methylamine;

At least 20 KG but
less than 35 KG of N-Methylephedrine;

At least 20 KG but
less than 35 KG of N-Methylpseudoephedrine;

At least 25 G but
less than 43.8 G of Nitroethane;

At least 400 G but
less than 700 G of Norpseudoephedrine;

At least 800 G but
less than 1.4 KG of Phenylacetic Acid;

At least 400 G but
less than 700 G of Piperidine;

At least 12.8 KG
but less than 22.4 KG of Piperonal;

At least 64 G but
less than 112 G of Propionic Anhydride;

At least 12.8 KG
but less than 22.4 KG of Safrole;

At least 16 KG but
less than 28 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

At least 400 KG but
less than 700 KG of Gamma-butyrolactone;

List II
Chemicals

At least 726 G but
less than 1.1 KG of Acetic Anhydride;

At least 82.25 KG
but less than 117.5 KG of Acetone;

At least 1.4 KG but
less than 2 KG of Benzyl Chloride;

At least 75.25 KG
but less than 107.5 KG of Ethyl Ether;

At least 84 KG but
less than 120 KG of Methyl Ethyl Ketone;

At least 700 G but
less than 1 KG of Potassium Permanganate;

At least 91 KG but
less than 130 KG of Toluene;

At least 50.2 G but less than 87.8 G of Iodine.

(6)

List I Chemicals

Level 20

At least 8.9 G but
less than 35.6 G of Benzaldehyde;

At least 200 G but
less than 800 G of Benzyl Cyanide;

At least 2 G but
less than 8 G of Ergonovine;

At least 4 G but
less than 16 G of Ergotamine;

At least 200 G but
less than 800 G of Ethylamine;

At least 22 G but
less than 88 G of Hydriodic Acid;

At least 3.2 KG but
less than 12.8 KG of Isosafrole;

At least 2 G but
less than 8 G of Methylamine;

At least 5 KG but
less than 20 KG of N-Methylephedrine;

At least 5 KG but
less than 20 KG of N-Methylpseudoephedrine;

At least 6.3 G but
less than 25 G of Nitroethane;

At least 100 G but
less than 400 of Norpseudoephedrine;

At least 200 G but
less than 800 G of Phenylacetic Acid;

At least 100 G but
less than 400 G of Piperidine;

At least 3.2 KG but
less than 12.8 KG of Piperonal;

At least 16 G but
less than 64 G of Propionic Anhydride;

At least 3.2 KG but
less than 12.8 KG of Safrole;

At least 4 KG but
less than 16 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

At least 100 KG but
less than 400 KG of Gamma-butyrolactone;

List II
Chemicals

At least 440 G but
less than 726 G of Acetic Anhydride;

At least 47 KG but
less than 82.25 KG of Acetone;

At least 800 G but
less than 1.4 KG of Benzyl Chloride;

At least 43 KG but
less than 75.25 KG of Ethyl Ether;

At least 48 KG but
less than 84 KG of Methyl Ethyl Ketone;

At least 400 G but less than 700 G of Potassium Permanganate;

At least 52 KG but less than 91 KG of Toluene;

At least 12.5 G but less than 50.2 G of Iodine.

(7)

List I
Chemicals

Level 18

At least 7.1 G but
less than 8.9 G of Benzaldehyde;

At least 160 G but
less than 200 G of Benzyl Cyanide;

At least 1.6 G but
less than 2 G of Ergonovine;

At least 3.2 G but
less than 4 G of Ergotamine;

At least 160 G but
less than 200 G of Ethylamine;

At least 17.6 G but
less than 22 G of Hydriodic Acid;

At least 2.56 KG
but less than 3.2 KG of Isosafrole;

At least 1.6 G but
less than 2 G of Methylamine;

At least 4 KG but
less than 5 KG of N-Methylephedrine;

At least 4 KG but
less than 5 KG of N-Methylpseudoephedrine;

At least 5 G but
less than 6.3 G of Nitroethane;

At least 80 G but
less than 100 G of Norpseudoephedrine;

At least 160 G but
less than 200 G of Phenylacetic Acid;

At least 80 G but
less than 100 G of Piperidine;

At least 2.56 KG
but less than 3.2 KG of Piperonal;

At least 12.8 G but
less than 16 G of Propionic Anhydride;

At least 2.56 KG
but less than 3.2 KG of Safrole;

At least 3.2 KG but
less than 4 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

At least 80 KG but
less than 100 KG of Gamma-butyrolactone;

List II
Chemicals

At least 110 G but
less than 440 G of Acetic Anhydride;

At least 11.75 KG
but less than 47 KG of Acetone;

At least 200 G but
less than 800 G of Benzyl Chloride;

At least 10.75 KG
but less than 43 KG of Ethyl Ether;

At least 12 KG but
less than 48 KG of Methyl Ethyl Ketone;

At least 100 G but
less than 400 G of Potassium Permanganate;

At least 13 KG but
less than 52 KG of Toluene;

At least 10 G but
less than 12.5 G of Iodine.

(8)

List I Chemicals

Level 16

3.6 KG or more of
Anthranilic Acid;

At least 5.3 G but
less than 7.1 G of Benzaldehyde;

At least 120 G but
less than 160 G of Benzyl Cyanide;

At least 1.2 G but
less than 1.6 G of Ergonovine;

At least 2.4 G but
less than 3.2 G of Ergotamine;

At least 120 G but
less than 160 G of Ethylamine;

At least 13.2 G but
less than 17.6 G of Hydriodic Acid;

At least 1.92 KG
but less than 2.56 KG of Isosafrole;

At least 1.2 G but
less than 1.6 G of Methylamine;

4.8 KG or more of
N-Acetylanthranilic Acid;

At least 3 KG but
less than 4 KG of N-Methylephedrine;

At least 3 KG but
less than 4 KG of N-Methylpseudoephedrine;

At least 3.8 G but
less than 5 G of Nitroethane;

At least 60 G but
less than 80 G of Norpseudoephedrine;

At least 120 G but
less than 160 G of Phenylacetic Acid;

At least 60 G but
less than 80 G of Piperidine;

At least 1.92 KG
but less than 2.56 KG of Piperonal;

At least 9.6 G but
less than 12.8 G of Propionic Anhydride;

At least 1.92 KG
but less than 2.56 KG of Safrole;

At least 2.4 KG but
less than 3.2 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

At least 60 KG but
less than 80 KG of Gamma-butyrolactone;

List II
Chemicals

At least 88 G but
less than 110 G of Acetic Anhydride;

At least 9.4 KG but
less than 11.75 KG of Acetone;

At least 160 G but
less than 200 G of Benzyl Chloride;

At least 8.6 KG but
less than 10.75 KG of Ethyl Ether;

At least 9.6 KG but
less than 12 KG of Methyl Ethyl Ketone;

At least 80 G but
less than 100 G of Potassium Permanganate;

At least 10.4 KG
but less than 13 KG of Toluene;

At least 7.5 G but
less than 10 G of Iodine.

(9)

List I
Chemicals

Level 14

At least 2.7 KG but
less than 3.6 KG of Anthranilic Acid;

At least 3.6 G but
less than 5.3 G of Benzaldehyde;

At least 80 G but
less than 120 G of Benzyl Cyanide;

At least 800 MG but
less than 1.2 G of Ergonovine;

At least 1.6 G but
less than 2.4 G of Ergotamine;

At least 80 G but
less than 120 G of Ethylamine;

At least 8.8 G but
less than 13.2 G of Hydriodic Acid;

At least 1.44 KG
but less than 1.92 KG of Isosafrole;

At least 800 MG but
less than 1.2 G of Methylamine;

At least 3.6 KG but
less than 4.8 KG of N-Acetylanthranilic Acid;

At least 2.25 KG
but less than 3 KG of N-Methylephedrine;

At least 2.25 KG
but less than 3 KG of N-Methylpseudoephedrine;

At least 2.5 G but
less than 3.8 G of Nitroethane;

At least 40 G but
less than 60 G of Norpseudoephedrine;

At least 80 G but
less than 120 G of Phenylacetic Acid;

At least 40 G but
less than 60 G of Piperidine;

At least 1.44 KG
but less than 1.92 KG of Piperonal;

At least 7.2 G but
less than 9.6 G of Propionic Anhydride;

At least 1.44 KG
but less than 1.92 KG of Safrole;

At least 1.8 KG but
less than 2.4 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

At least 40 KG but
less than 60 KG of Gamma-butyrolactone;

List II
Chemicals

At least 66 G but
less than 88 G of Acetic Anhydride;

At least 7.05 KG
but less than 9.4 KG of Acetone;

At least 120 G but
less than 160 G of Benzyl Chloride;

At least 6.45 KG
but less than 8.6 KG of Ethyl Ether;

At least 7.2 KG but
less than 9.6 KG of Methyl Ethyl Ketone;

At least 60 G but
less than 80 G of Potassium Permanganate;

At least 7.8 KG but
less than 10.4 KG of Toluene;

At least 5 G but
less than 7.5 G of Iodine.

(10)

List I Chemicals

Level 12

Less than 2.7 KG of
Anthranilic Acid;

Less than 3.6 G of
Benzaldehyde;

Less than 80 G of
Benzyl Cyanide;

Less than 800 MG of
Ergonovine;

Less than 1.6 G of
Ergotamine;

Less than 80 G of
Ethylamine;

Less than 8.8 G of
Hydriodic Acid;

Less than 1.44 KG
of Isosafrole;

Less than 800 MG of
Methylamine;

Less than 3.6 KG of
N-Acetylanthranilic Acid;

Less than 2.25 KG
of N-Methylephedrine;

Less than 2.25 KG
of N-Methylpseudoephedrine;

Less than 2.5 G of
Nitroethane;

Less than 40 G of
Norpseudoephedrine;

Less than 80 G of
Phenylacetic Acid;

Less than 40 G of
Piperidine;

Less than 1.44 KG
of Piperonal;

Less than 7.2 G of
Propionic Anhydride;

Less than 1.44 KG
of Safrole;

Less than 1.8 KG of
3, 4-Methylenedioxyphenyl-2-propanone;

Less than 40 KG of
Gamma-butyrolactone;

List II
Chemicals

Less than 66 G of
Acetic Anhydride;

Less than 7.05 KG
of Acetone;

Less than 120 G of
Benzyl Chloride;

Less than 6.45 KG
of Ethyl Ether;

Less than 7.2 KG of
Methyl Ethyl Ketone;

Less than 60 G of
Potassium Permanganate;

Less than 7.8 KG of
Toluene;

Less than 5 G of
Iodine.

______________

*Notes:

(A)Except as provided in Note (B), to calculate the base offense level
in an offense that involves two or more chemicals, use the quantity of the
single chemical that results in the greatest offense level, regardless of
whether the chemicals are set forth in different tables or in different
categories (i.e., list I or list II) under subsection (d) of this
guideline.1

(B)To calculate the base offense level in an offense that involves two
or more chemicals each of which is set forth in the Ephedrine, Pseudoephedrine,
and Phenylpropanolamine Quantity Table, (i) aggregate the quantities of all
such chemicals, and (ii) determine the base offense level corresponding to the
aggregate quantity.

(C)In a case involving ephedrine, pseudoephedrine, or
phenylpropanolamine tablets, use the weight of the ephedrine, pseudoephedrine,
or phenylpropanolamine contained in the tablets, not the weight of the entire
tablets, in calculating the base offense level.

1."Firearm" and "dangerous weapon" are defined in the Commentary to
§1B1.1 (Application Instructions). The adjustment in subsection (b)(1)
should be applied if the weapon was present, unless it is improbable that the
weapon was connected with the offense.

2. "Offense involved unlawfully manufacturing a controlled substance
or attempting to manufacture a controlled substance unlawfully," as used in
subsection (c)(1), means that the defendant, or a person for whose conduct the
defendant is accountable under §1B1.3 (Relevant Conduct), completed the
actions sufficient to constitute the offense of unlawfully manufacturing a
controlled substance or attempting to manufacture a controlled substance
unlawfully.

3. In certain cases, the defendant will be convicted of an offense
involving a listed chemical covered under this guideline, and a related offense
involving an immediate precursor or other controlled substance covered under
§2D1.1 (Unlawfully Manufacturing, Importing, Exporting, or Trafficking).
For example, P2P (an immediate precursor) and methylamine (a listed chemical)
are used together to produce methamphetamine. Determine the offense level under
each guideline separately. The offense level for methylamine is determined by
using §2D1.11. The offense level for P2P is determined by using
§2D1.1 (P2P is listed in the Drug Equivalency Table under Cocaine and
Other Schedule I and II Stimulants (and their immediate precursors)). Under the
grouping rules of §3D1.2(b), the counts will be grouped together. Note
that in determining the scale of the offense under §2D1.1, the quantity of
both the controlled substance and listed chemical should be considered
(see Application Note 12 in the Commentary to §2D1.1).

1The reference to "subsection (d) of this
guideline" should be a reference to "subsection (d) or (e) of this guideline,
as appropriate".

4. Cases Involving Multiple Chemicals.

(A) Determining the Base Offense Level for Two or More
Chemicals.Except as provided in subdivision (B), if the offense
involves two or more chemicals, use the quantity of the single chemical that
results in the greatest offense level, regardless of whether the chemicals are
set forth in different tables or in different categories (i.e., list I
or list II) under this guideline.

Example: The defendant was in possession of five kilograms of
ephedrine and 300 grams of hydriodic acid. Ephedrine and hydriodic acid
typically are used together in the same manufacturing process to manufacture
methamphetamine. The base offense level for each chemical is calculated
separately and the chemical with the higher base offense level is used. Five
kilograms of ephedrine result in a base offense level of level 38; 300 grams of
hydriodic acid result in a base offense level of level 26. In this case, the
base offense level would be level 38.

(B)Determining the Base Offense Level for Offenses involving
Ephedrine, Pseudoephedrine, or Phenylpropanolamine.If the offense
involves two or more chemicals each of which is set forth in the Ephedrine,
Pseudoephedrine, and Phenylpropanolamine Quantity Table, (i) aggregate the
quantities of all such chemicals, and (ii) determine the base offense level
corresponding to the aggregate quantity.

Example: The defendant was in possession of 80 grams of
ephedrine and 50 grams of phenylpropanolamine, an aggregate quantity of 130
grams of such chemicals. The base offense level corresponding to that aggregate
quantity is level 32.

(C)Upward Departure.In a case involving two or more
chemicals used to manufacture different controlled substances, or to
manufacture one controlled substance by different manufacturing processes, an
upward departure may be warranted if the offense level does not adequately
address the seriousness of the offense.

5. Convictions under 21 U.S.C. §§ 841(d)(2), (g)(1), and
960(d)(2) do not require that the defendant have knowledge or an actual belief
that the listed chemical was to be used to manufacture a controlled substance
unlawfully. Where the defendant possessed or distributed the listed chemical
without such knowledge or belief, a 3-level reduction is provided to reflect
that the defendant is less culpable than one who possessed or distributed
listed chemicals knowing or believing that they would be used to manufacture a
controlled substance unlawfully.

6. Subsection (b)(3) applies if the conduct for which the defendant
is accountable under §1B1.3 (Relevant Conduct) involved any discharge,
emission, release, transportation, treatment, storage, or disposal violation
covered by the Resource Conservation and Recovery Act, 42 U.S.C.
§ 6928(d), the Federal Water Pollution Control Act, 33 U.S.C.
§ 1319(c), or the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. §§ 5124, 9603(b). In some cases,
the enhancement under subsection (b)(3) may not adequately account for the
seriousness of the environmental harm or other threat to public health or
safety (including the health or safety of law enforcement and cleanup
personnel). In such cases, an upward departure may be warranted. Additionally,
any costs of environmental cleanup and harm to persons or property should be
considered by the court in determining the amount of restitution under
§5E1.1 (Restitution) and in fashioning appropriate conditions of
supervision under §§5B1.3 (Conditions of Probation) and 5D1.3
(Conditions of Supervised Release).

Background: Offenses covered by this guideline involve list I
chemicals (including ephedrine, pseudoephedrine, and pheylpropanolamine) and
list II chemicals. List I chemicals are important to the manufacture of a
controlled substance and usually become part of the final product. For example,
ephedrine reacts with other chemicals to form methamphetamine. The amount of
ephedrine directly affects the amount of methamphetamine produced. List II
chemicals are generally used as solvents, catalysts, and reagents.

(1) 12, if the defendant intended to manufacture a controlled
substance or knew or believed the prohibited flask, equipment, chemical,
product, or material was to be used to manufacture a controlled substance;
or

(2) 9, if the defendant had reasonable cause to believe the prohibited
flask, equipment, chemical, product, or material was to be used to manufacture
a controlled substance.

(b) Specific Offense Characteristics

(1) If the defendant (A) intended to manufacture methamphetamine, or
(B) knew, believed, or had reasonable cause to believe that prohibited flask,
equipment, chemical, product, or material was to be used to manufacture
methamphetamine, increase by 2 levels.

(2) If the offense involved (A) an unlawful discharge, emission, or
release into the environment of a hazardous or toxic substance; or (B) the
unlawful transportation, treatment, storage, or disposal of a hazardous waste,
increase by 2 levels.

(c)Cross Reference

(1) If the offense involved unlawfully manufacturing a controlled
substance, or attempting to manufacture a controlled substance unlawfully,
apply §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking) if the resulting offense level is greater than that determined
above.

Commentary

Statutory Provisions: 21 U.S.C. §§ 843(a)(6), (7),
864.

Application Notes:

1. If the offense involved the large-scale manufacture, distribution,
transportation, exportation, or importation of prohibited flasks, equipment,
chemicals, products, or material, an upward departure may be warranted.

2. "Offense involved unlawfully manufacturing a controlled substance
or attempting to manufacture a controlled substance unlawfully," as used in
subsection (c)(1), means that the defendant, or a person for whose conduct the
defendant is accountable under §1B1.3 (Relevant Conduct), completed the
actions sufficient to constitute the offense of unlawfully manufacturing a
controlled substance or attempting to manufacture a controlled substance
unlawfully.

3. Subsection (b)(2) applies if the conduct for which the defendant
is accountable under §1B1.3 (Relevant Conduct) involved any discharge,
emission, release, transportation, treatment, storage, or disposal violation
covered by the Resource Conservation and Recovery Act, 42 U.S.C.
§ 6928(d), the Federal Water Pollution Control Act, 33 U.S.C.
§ 1319(c), or the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. §§ 5124, 9603(b). In some cases,
the enhancement under subsection (b)(2) may not adequately account for the
seriousness of the environmental harm or other threat to public health or
safety (including the health or safety of law enforcement and cleanup
personnel). In such cases, an upward departure may be warranted. Additionally,
any costs of environmental cleanup and harm to persons or property should be
considered by the court in determining the amount of restitution under
§5E1.1 (Restitution) and in fashioning appropriate conditions of
supervision under §§5B1.3 (Conditions of Probation) and 5D1.3
(Conditions of Supervised Release).

(1) The offense level from §2D1.11 (Unlawfully Distributing,
Importing, Exporting, or Possessing a Listed Chemical) if the defendant knew or
believed that the chemical was to be used to manufacture a controlled substance
unlawfully; or

(2) The offense level from §2D1.11 (Unlawfully Distributing,
Importing, Exporting or Possessing a Listed Chemical) reduced by 3 levels if
the defendant had reason to believe that the chemical was to be used to
manufacture a controlled substance unlawfully; or

1."The offense level from §2D1.11" includes the base offense
level and any applicable specific offense characteristic or cross reference;
see §1B1.5 (Interpretation of References to Other Offense
Guidelines).

(1) 8, if the substance is heroin or any Schedule I or II opiate, an
analogue of these, or cocaine base; or

(2) 6, if the substance is cocaine, flunitrazepam, LSD, or PCP; or

(3) 4, if the substance is any other controlled substance or a list I
chemical.

(b)Cross References

(1) If the defendant is convicted of possession of more than 5 grams
of a mixture or substance containing cocaine base, apply §2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking) as if the defendant had
been convicted of possession of that mixture or substance with intent to
distribute.

(2) If the offense involved possession of a controlled substance in a
prison, correctional facility, or detention facility, apply §2P1.2
(Providing or Possessing Contraband in Prison).

1. The typical case addressed by this guideline involves possession
of a controlled substance by the defendant for the defendants own
consumption. Where the circumstances establish intended consumption by a person
other than the defendant, an upward departure may be warranted.

Background: Mandatory (statutory) minimum penalties for
several categories of cases, ranging from fifteen days to five
years imprisonment, are set forth in 21 U.S.C. § 844(a). When a
mandatory minimum penalty exceeds the guideline range, the mandatory minimum
becomes the guideline sentence. See §5G1.1(b). Note, however, that
18 U.S.C. § 3553(f) provides an exception to the applicability of
mandatory minimum sentences in certain cases. See §5C1.2
(Limitation on Applicability of Statutory Minimum Sentences in Certain
Cases).

Section 2D2.1(b)(1) provides a cross reference to §2D1.1 for
possession of more than five grams of a mixture or substance containing cocaine
base, an offense subject to an enhanced penalty under Section 6371 of the
Anti-Drug Abuse Act of 1988. Other cases for which enhanced penalties are
provided under Section 6371 of the Anti-Drug Abuse Act of 1988 (e.g.,
for a person with one prior conviction, possession of more than three grams of
a mixture or substance containing cocaine base; for a person with two or more
prior convictions, possession of more than one gram of a mixture or substance
containing cocaine base) are to be sentenced in accordance with
§5G1.1(b).

§2D2.3.Operating or Directing the Operation of a Common
Carrier Under the Influence of Alcohol or Drugs

(a)Base Offense Level (Apply the greatest):

(1) 26, if death resulted; or

(2) 21, if serious bodily injury resulted; or

(3) 13, otherwise.

(b) Special Instruction:

(1)If the defendant is convicted of a single count involving the death
or serious bodily injury of more than one person, apply Chapter Three, Part D
(Multiple Counts) as if the defendant had been convicted of a separate count
for each such victim.

Commentary

Statutory Provision: 18 U.S.C. § 342.

Background: This section implements the direction to the
Commission in Section 6482 of the Anti-Drug Abuse Act of 1988. Offenses covered
by this guideline may vary widely with regard to harm and risk of harm. The
offense levels assume that the offense involved the operation of a common
carrier carrying a number of passengers, e.g., a bus. If no or only a
few passengers were placed at risk, a downward departure may be warranted. If
the offense resulted in the death or serious bodily injury of a large number of
persons, such that the resulting offense level under subsection (b) would not
adequately reflect the seriousness of the offense, an upward departure may be
warranted.

Because of the jurisdictional nature of the offenses included, this
subpart covers a wide variety of criminal conduct. The offense level usually
will be determined by the offense level of the underlying conduct.

(2) the offense level applicable to the underlying racketeering
activity.

Commentary

Statutory Provisions: 18 U.S.C. §§ 1962,
1963.

Application Notes:

1. Where there is more than one underlying offense, treat each
underlying offense as if contained in a separate count of conviction for the
purposes of subsection (a)(2). To determine whether subsection (a)(1) or (a)(2)
results in the greater offense level, apply Chapter Three, Parts A, B, C, and D
to both (a)(1) and (a)(2). Use whichever subsection results in the greater
offense level.

2. If the underlying conduct violates state law, the offense level
corresponding to the most analogous federal offense is to be used.

3. If the offense level for the underlying racketeering activity is
less than the alternative minimum level specified (i.e., 19), the
alternative minimum base offense level is to be used.

4. Certain conduct may be charged in the count of conviction as part
of a "pattern of racketeering activity" even though the defendant has
previously been sentenced for that conduct. Where such previously imposed
sentence resulted from a conviction prior to the last overt act of the instant
offense, treat as a prior sentence under §4A1.2(a)(1) and not as part of
the instant offense. This treatment is designed to produce a result consistent
with the distinction between the instant offense and criminal history found
throughout the guidelines. If this treatment produces an anomalous result in a
particular case, a guideline departure may be warranted.

§2E1.2. Interstate or Foreign Travel or Transportation in Aid
of a Racketeering Enterprise

(a)Base Offense Level (Apply the greater):

(1) 6; or

(2)the offense level applicable to the underlying crime of violence or
other unlawful activity in respect to which the travel or transportation was
undertaken.

Commentary

Statutory Provision: 18 U.S.C. § 1952.

Application Notes:

1. Where there is more than one underlying offense, treat each
underlying offense as if contained in a separate count of conviction for the
purposes of subsection (a)(2). To determine whether subsection (a)(1) or (a)(2)
results in the greater offense level, apply Chapter Three, Parts A, B, C, and D
to both (a)(1) and (a)(2). Use whichever subsection results in the greater
offense level.

2. If the underlying conduct violates state law, the offense level
corresponding to the most analogous federal offense is to be used.

3. If the offense level for the underlying conduct is less than the
alternative minimum base offense level specified (i.e., 6), the
alternative minimum base offense level is to be used.

§2E2.1. Making or Financing an Extortionate Extension of
Credit; Collecting an Extension of Credit by Extortionate Means

(a) Base Offense Level: 20

(b) Specific Offense Characteristics

(1)(A)If a firearm was discharged increase by 5 levels;
or

(B) if a dangerous weapon (including a firearm) was otherwise used,
increase by 4 levels; or

(C) if a dangerous weapon (including a firearm) was brandished or
possessed, increase by 3 levels.

(2) If any victim sustained bodily injury , increase the offense level
according to the seriousness of the injury:

Degree of Bodily Injury

Increase in Level

(A)

Bodily Injury

add 2

(B)

Serious Bodily Injury

add 4

(C)

Permanent or Life-Threatening Bodily Injury

add 6

(D)

If the degree of injury is between that specified in
subdivisions (A) and (B), add 3 levels; or

(E)

If the degree of injury is between that specified in
subdivisions (B) and (C), add 5 levels.

Provided, however, that the combined increase from (1) and (2)
shall not exceed 9 levels.

(3)(A) If any person was abducted to facilitate commission of the
offense or to facilitate escape, increase by 4 levels; or

(B) if any person was physically restrained to facilitate commission
of the offense or to facilitate escape, increase by 2 levels.

(c) Cross Reference

(1) If a victim was killed under circumstances that would constitute
murder under 18 U.S.C. § 1111 had such killing taken place within the
territorial or maritime jurisdiction of the United States, apply §2A1.1
(First Degree Murder).

2. See also Commentary to §2B3.2 (Extortion by Force or
Threat of Injury or Serious Damage) regarding the interpretation of the
specific offense characteristics.

Background: This section refers to offenses involving the
making or financing of extortionate extensions of credit, or the collection of
loans by extortionate means. These "loan-sharking" offenses typically involve
threats of violence and provide economic support for organized crime. The base
offense level for these offenses is higher than the offense level for extortion
because loan sharking is in most cases a continuing activity. In addition, the
guideline does not include the amount of money involved because the amount of
money in such cases is often difficult to determine. Other enhancements
parallel those in §2B3.2 (Extortion by Force or Threat of Injury or
Serious Damage).

This subpart covers a variety of proscribed conduct. The adjustments
in Chapter Three, Part B (Role in the Offense) are particularly relevant in
providing a measure of the scope of the offense and the defendants
participation.

Historical Note: Effective November 1,
1987.

§2E3.1. Gambling Offenses

(a) Base Offense Level:

(1)12, if the offense was (A) engaging in a gambling business; (B)
transmission of wagering information; or (C) committed as part of, or to
facilitate, a commercial gambling operation; or

(2)the offense level from the table in §2T4.1 (Tax Table)
corresponding to the amount of the tax evaded.

Commentary

Statutory Provisions: 18 U.S.C. §§ 2342(a),
2344(a).

Application Note:

1. "Tax evaded" refers to state excise tax.

Background: The conduct covered by this section generally
involves evasion of state excise taxes. At least 60,000 cigarettes must be
involved. Because this offense is basically a tax matter, it is graded by use
of the tax table in §2T4.1.

Historical Note: Effective November 1,
1987.

* * * * *

5. LABOR RACKETEERING

Introductory Commentary

The statutes included in this subpart protect the rights of employees
under the Taft-Hartley Act, members of labor organizations under the
Labor-Management Reporting and Disclosure Act of 1959, and participants of
employee pension and welfare benefit plans covered under the Employee
Retirement Income Security Act.

The base offense levels for many of the offenses in this subpart have
been determined by reference to analogous sections of the guidelines. Thus, the
base offense levels for bribery, theft, and fraud in this subpart generally
correspond to similar conduct under other parts of the guidelines. The base
offense levels for bribery and graft have been set higher than the level for
commercial bribery due to the particular vulnerability to exploitation of the
organizations covered by this subpart.

Historical Note: Effective November 1,
1987.

§2E5.1. Offering, Accepting, or Soliciting a Bribe or
Gratuity Affecting the Operation of an Employee Welfare or Pension Benefit
Plan; Prohibited Payments or Lending of Money by Employer or Agent to
Employees, Representatives, or Labor Organizations

(a)Base Offense Level:

(1)10, if a bribe; or

(2)6, if a gratuity.

(b) Specific Offense Characteristics

(1) If the defendant was a fiduciary of the benefit plan or labor
organization, increase by 2 levels.

(2) If the value of the prohibited payment or the value of the
improper benefit to the payer, whichever is greater (A) exceeded $2,000 but did
not exceed $5,000, increase by 1 level; or (B) exceeded $5,000, increase by the
number of levels from the table in §2B1.1 (Theft, Property Destruction,
and Fraud) corresponding to that amount.

(c) Special Instruction for Fines - Organizations

(1)In lieu of the pecuniary loss under subsection (a)(3) of
§8C2.4 (Base Fine), use the greatest of: (A) the value of the unlawful
payment; (B) if a bribe, the value of the benefit received or to be received in
return for the unlawful payment; or (C) if a bribe, the consequential damages
resulting from the unlawful payment.

Commentary

Statutory Provisions: 18 U.S.C. § 1954; 29 U.S.C.
§ 186.

Application Notes:

1. "Bribe" refers to the offer or acceptance of an unlawful payment
with the specific understanding that it will corruptly affect an official
action of the recipient.

2. "Gratuity" refers to the offer or acceptance of an unlawful
payment other than a bribe.

3. "Fiduciary of the benefit plan" is defined in 29 U.S.C.
§ 1002(21)(A) to mean a person who exercises any discretionary
authority or control in respect to the management of such plan or exercises
authority or control in respect to management or disposition of its assets, or
who renders investment advice for a fee or other direct or indirect
compensation with respect to any moneys or other property of such plan, or has
any authority or responsibility to do so, or who has any discretionary
authority or responsibility in the administration of such plan.

4. "Value of the improper benefit to the payer" is explained in the
Commentary to §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe;
Extortion Under Color of Official Right).

5. If the adjustment for a fiduciary at §2E5.1(b)(1) applies, do
not apply the adjustment at §3B1.3 (Abuse of Position of Trust or Use of
Special Skill).

Background: This section covers the giving or receipt of
bribes and other unlawful gratuities involving employee welfare or pension
benefit plans, or labor organizations. The seriousness of the offense is
determined by several factors, including the value of the bribe or gratuity and
the magnitude of the loss resulting from the transaction.

§2E5.3. False Statements and Concealment of Facts in Relation
to Documents Required by the Employee Retirement Income Security Act; Failure
to Maintain and Falsification of Records Required by the Labor Management
Reporting and Disclosure Act

(a) Base Offense Level (Apply the greater):

(1) 6; or

(2) If the offense was committed to facilitate or conceal a theft or
embezzlement, or an offense involving a bribe or a gratuity, apply §2B1.1
or §2E5.1, as applicable.

Background: This section covers the falsification of documents
or records relating to a benefit plan covered by ERISA. It also covers failure
to maintain proper documents required by the LMRDA or falsification of such
documents. Such violations sometimes occur in connection with the criminal
conversion of plan funds or schemes involving bribery or graft. Where a
violation under this section occurs in connection with another offense, the
offense level is determined by reference to the offense facilitated by the
false statements or documents.

Historical Note: The heading to Part F - Offenses
Involving Fraud or Deceit, effective November 1, 1987, was deleted due to the
deletion of §§2F1.1 and 2F1.2 effective November 1, 2001 (see
Appendix C, amendment 617).

(5) If a computer or an Internet-access device was used to (A)
persuade, induce, entice, coerce, or facilitate the travel of, a minor to
engage in prostitution; or (B) entice, encourage, offer, or solicit a person to
engage in prohibited sexual conduct with a minor, increase by 2
levels.

(c)Cross References

(1) If the offense involved causing, transporting, permitting, or
offering or seeking by notice or advertisement, a person less than 18 years of
age to engage in sexually explicit conduct for the purpose of producing a
visual depiction of such conduct, apply §2G2.1 (Sexually Exploiting a
Minor by Production of Sexually Explicit Visual or Printed Material; Custodian
Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for
Minors to Engage in Production).

(2) If the offense involved criminal sexual abuse, attempted criminal
sexual abuse, or assault with intent to commit criminal sexual abuse, apply
§2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).
If the offense involved criminal sexual abuse of a minor who had not attained
the age of 12 years, §2A3.1 shall apply, regardless of the "consent" of
the victim.

(3) If the offense did not involve promoting prostitution, and neither
subsection (c)(1) nor (c)(2) is applicable, apply §2A3.2 (Criminal Sexual
Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to
Commit Such Acts) or §2A3.4 (Abusive Sexual Contact or Attempt to Commit
Abusive Sexual Contact), as appropriate.

(d)Special Instruction

(1) If the offense involved more than one victim, Chapter Three, Part
D (Multiple Counts) shall be applied as if the promoting of prostitution or
prohibited sexual conduct in respect to each victim had been contained in a
separate count of conviction.

"Participant" has the meaning given that term in Application Note 1
of §3B1.1 (Aggravating Role).

"Prohibited sexual conduct" has the meaning given that term in
Application Note 1 of §2A3.1 (Criminal Sexual Abuse; Attempt to Commit
Criminal Sexual Abuse).

"Promoting prostitution" means persuading, inducing, enticing, or
coercing a person to engage in prostitution, or to travel to engage in,
prostitution.

"Victim" means a person transported, persuaded, induced, enticed, or
coerced to engage in, or travel for the purpose of engaging in, prostitution or
prohibited sexual conduct, whether or not the person consented to the
prostitution or prohibited sexual conduct. Accordingly, "victim" may include an
undercover law enforcement officer.

2. Subsection (b)(1) provides an enhancement for physical force, or
coercion, that occurs as part of a prostitution offense and anticipates no
bodily injury. If bodily injury results, an upward departure may be warranted.
See Chapter Five, Part K (Departures). For purposes of subsection
(b)(1)(B), "coercion" includes any form of conduct that negates the
voluntariness of the behavior of the victim. This enhancement would apply, for
example, in a case in which the ability of the victim to appraise or control
conduct was substantially impaired by drugs or alcohol. In the case of an adult
victim, rather than a victim less than 18 years of age, this characteristic
generally will not apply if the drug or alcohol was voluntarily taken.

3. For the purposes of §3B1.1 (Aggravating Role), a victim, as
defined in this guideline, is considered a participant only if that victim
assisted in the promoting of prostitution or prohibited sexual conduct in
respect to another victim.

4. For the purposes of Chapter Three, Part D (Multiple Counts), each
person transported, persuaded, induced, enticed, or coerced to engage in, or
travel to engage in, prostitution or prohibited sexual conduct is to be treated
as a separate victim. Consequently, multiple counts involving more than one
victim are not to be grouped together under §3D1.2 (Groups of
Closely-Related Counts). In addition, subsection (d)(1) directs that if the
relevant conduct of an offense of conviction includes the promoting of
prostitution or prohibited sexual conduct in respect to more than one victim,
whether specifically cited in the count of conviction, each such victim shall
be treated as if contained in a separate count of conviction.

5. Subsection (b)(3) is intended to have broad application and
includes offenses involving a victim less than 18 years of age entrusted to the
defendant, whether temporarily or permanently. For example, teachers, day care
providers, baby-sitters, or other temporary caretakers are among those who
would be subject to this enhancement. In determining whether to apply this
enhancement, the court should look to the actual relationship that existed
between the defendant and the victim and not simply to the legal status of the
defendant-victim relationship.

6. If the enhancement in subsection (b)(3) applies, do not apply
subsection (b)(4) or §3B1.3 (Abuse of Position of Trust or Use of Special
Skill).

7. The enhancement in subsection (b)(4)(A) applies in cases involving
the misrepresentation of a participants identity to persuade, induce,
entice, coerce, or facilitate the travel of, a minor to engage in prostitution.
Subsection (b)(4)(A) is intended to apply only to misrepresentations made
directly to a minor or to a person who exercises custody, care, or supervisory
control of the minor. Accordingly, the enhancement in subsection (b)(4)(A)
would not apply to a misrepresentation made by a participant to an airline
representative in the course of making travel arrangements for the minor.

The misrepresentation to which the enhancement in subsection
(b)(4)(A) may apply includes misrepresentation of a participants name,
age, occupation, gender, or status, as long as the misrepresentation was made
with the intent to persuade, induce, entice, coerce, or facilitate the travel
of, a minor to engage in prostitution. Accordingly, use of a computer screen
name, without such intent, would not be a sufficient basis for application of
the enhancement.

In determining whether subsection (b)(4)(B) applies, the court should
closely consider the facts of the case to determine whether a
participants influence over the minor compromised the voluntariness of
the minors behavior.

In a case in which a participant is at least 10 years older than the
minor, there shall be a rebuttable presumption, for purposes of subsection
(b)(4)(B), that such participant unduly influenced the minor to engage in
prostitution. In such a case, some degree of undue influence can be presumed
because of the substantial difference in age between the participant and the
minor.

8. Subsection (b)(5) provides an enhancement if a computer or an
Internet-access device was used to (A) persuade, induce, entice, coerce, or
facilitate the travel of, a minor to engage in prostitution; or (B) entice,
encourage, offer, or solicit a person to engage in prohibited sexual conduct
with a minor. Subsection (b)(5)(A) is intended to apply only to the use of a
computer or an Internet-access device to communicate directly with a minor or
with a person who exercises custody, care, or supervisory control of the minor.
Accordingly, the enhancement in subsection (b)(5)(A) would not apply to the use
of a computer or an Internet-access device to obtain airline tickets for the
minor from an airlines Internet site.

9. The cross reference in subsection (c)(1) is to be construed
broadly to include all instances in which the offense involved employing,
using, persuading, inducing, enticing, coercing, transporting, permitting, or
offering or seeking by notice or advertisement, a person less than 18 years of
age to engage in sexually explicit conduct for the purpose of producing any
visual depiction of such conduct. For purposes of subsection (c)(1), "sexually
explicit conduct" has the meaning given that term in 18 U.S.C. §
2256.

10. Subsection (c)(2) provides a cross reference to §2A3.1
(Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) if the offense
involved criminal sexual abuse or attempt to commit criminal sexual abuse, as
defined in 18 U.S.C. § 2241 or § 2242. For example, the cross
reference to §2A3.1 shall apply if the offense involved criminal sexual
abuse; and (A) the victim had not attained the age of 12 years (see 18
U.S.C. § 2241(c)); (B) the victim had attained the age of 12 years but had
not attained the age of 16 years, and was placed in fear of death, serious
bodily injury, or kidnaping (see 18 U.S.C. § 2241(a),(c)); or (C)
the victim was threatened or placed in fear other than fear of death, serious
bodily injury, or kidnaping (see 18 U.S.C. § 2242(1)).

11. The cross reference in subsection (c)(3) addresses the case in
which the offense did not involve promoting prostitution, neither subsection
(c)(1) nor (c)(2) is applicable, and the offense involved prohibited sexual
conduct other than the conduct covered by subsection (c)(1) or (c)(2). In such
case, the guideline for the underlying prohibited sexual conduct is to be used;
i.e., §2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of
Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) or §2A3.4
(Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact).

12. Upward Departure Provisions.An upward departure may
be warranted in either of the following circumstances:

(A) The defendant was convicted under 18 U.S.C. § 1591 and the
offense involved a victim who had not attained the age of 14
years.

(B) The offense involved more than 10 victims.

Background: This guideline covers offenses under chapter 117
of title 18, United States Code. Those offenses involve promoting prostitution
or prohibited sexual conduct through a variety of means. Offenses that involve
promoting prostitution under chapter 117 of such title are sentenced under this
guideline, unless other prohibited sexual conduct occurs as part of the
prostitution offense, in which case one of the cross references would apply.
Offenses under chapter 117 of such title that do not involve promoting
prostitution are to be sentenced under §2G2.1 (Sexually Exploiting a Minor
by Production of Sexually Explicit Visual or Printed Material; Custodian
Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for
Minors to Engage in Production), §2A3.1 (Criminal Sexual Abuse; Attempt to
Commit Criminal Sexual Abuse), §2A3.2 (Criminal Sexual Abuse of a Minor
Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts)
or §2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual
Contact), as appropriate, pursuant to the cross references provided in
subsection (c).

This guideline also covers offenses under section 1591 of title 18,
United States Code. These offenses involve recruiting or transporting a person
in interstate commerce knowing either that (1) force, fraud, or coercion will
be used to cause the person to engage in a commercial sex act; or (2) the
person (A) had not attained the age of 18 years; and (B) will be caused to
engage in a commercial sex act.

§2G2.1. Sexually Exploiting a Minor by Production of Sexually
Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in
Sexually Explicit Conduct; Advertisement for Minors to Engage in
Production

(a) Base Offense Level: 27

(b) Specific Offense Characteristics

(1) If the offense involved a victim who had (A) not attained the age
of twelve years, increase by 4 levels; or (B) attained the age of twelve years
but not attained the age of sixteen years, increase by 2
levels.

(2) If the defendant was a parent, relative, or legal guardian of the
minor involved in the offense, or if the minor was otherwise in the custody,
care, or supervisory control of the defendant, increase by 2
levels.

(3) If, for the purpose of producing sexually explicit material, the
offense involved (A) the knowing misrepresentation of a participants
identity to persuade, induce, entice, coerce, or facilitate the travel of, a
minor to engage sexually explicit conduct; or (B) the use of a computer or an
Internet-access device to (i) persuade, induce, entice, coerce, or facilitate
the travel of, a minor to engage in sexually explicit conduct, or to otherwise
solicit participation by a minor in such conduct; or (ii) solicit participation
with a minor in sexually explicit conduct, increase by 2
levels.

(c) Special Instruction

(1) If the offense involved the exploitation of more than one minor,
Chapter Three, Part D (Multiple Counts) shall be applied as if the exploitation
of each minor had been contained in a separate count of
conviction.

1. For purposes of this guideline, "minor" means an individual who
had not attained the age of 18 years.

2. For the purposes of Chapter Three, Part D (Multiple Counts), each
minor exploited is to be treated as a separate victim. Consequently, multiple
counts involving the exploitation of different minors are not to be grouped
together under §3D1.2 (Groups of Closely Related Counts). Special
instruction (c)(1) directs that if the relevant conduct of an offense of
conviction includes more than one minor being exploited, whether specifically
cited in the count of conviction or not, each such minor shall be treated as if
contained in a separate count of conviction.

3. Subsection (b)(2) is intended to have broad application and
includes offenses involving a minor entrusted to the defendant, whether
temporarily or permanently. For example, teachers, day care providers,
baby-sitters, or other temporary caretakers are among those who would be
subject to this enhancement. In determining whether to apply this adjustment,
the court should look to the actual relationship that existed between the
defendant and the child and not simply to the legal status of the
defendant-child relationship.

4. If the adjustment in subsection (b)(2) applies, do not apply
§3B1.3 (Abuse of Position of Trust or Use of Special Skill).

5. The enhancement in subsection (b)(3)(A) applies in cases involving
the misrepresentation of a participants identity to persuade, induce,
entice, coerce, or facilitate the travel of, a minor to engage in sexually
explicit conduct for the purpose of producing sexually explicit material.
Subsection (b)(3)(A) is intended to apply only to misrepresentations made
directly to a minor or to a person who exercises custody, care, or supervisory
control of the minor. Accordingly, the enhancement in subsection (b)(3)(A)
would not apply to a misrepresentation made by a participant to an airline
representative in the course of making travel arrangements for the minor.

The misrepresentation to which the enhancement in subsection
(b)(3)(A) may apply includes misrepresentation of a participants name,
age, occupation, gender, or status, as long as the misrepresentation was made
with the intent to persuade, induce, entice, coerce, or facilitate the travel
of, a minor to engage in sexually explicit conduct for the purpose of producing
sexually explicit material. Accordingly, use of a computer screen name, without
such intent, would not be a sufficient basis for application of the
enhancement.

Subsection (b)(3)(B)(i) provides an enhancement if a computer or an
Internet-access device was used to persuade, induce, entice, coerce, or
facilitate the travel of, a minor to engage in sexually explicit conduct for
the purpose of producing sexually explicit material or otherwise to solicit
participation by a minor in such conduct for such purpose. Subsection
(b)(3)(B)(i) is intended to apply only to the use of a computer or an
Internet-access device to communicate directly with a minor or with a person
who exercises custody, care, or supervisory control of the minor. Accordingly,
the enhancement would not apply to the use of a computer or an Internet-access
device to obtain airline tickets for the minor from an airlines Internet
site.

6. Upward Departure Provisions.An upward departure may
be warranted in either of the following circumstances:

(A)The defendant was convicted under 18 U.S.C. § 1591 and the
offense involved a victim who had not attained the age of 14
years.

§2G2.2.Trafficking in Material Involving the Sexual
Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising
Material Involving the Sexual Exploitation of a Minor; Possessing Material
Involving the Sexual Exploitation of a Minor with Intent to Traffic

(a)Base Offense Level: 17

(b)Specific Offense Characteristics

(1) If the material involved a prepubescent minor or a minor under the
age of twelve years, increase by 2 levels.

(2) (Apply the Greatest) If the offense involved:

(A) Distribution for pecuniary gain, increase by the number of
levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud)
corresponding to the retail value of the material, but by not less than 5
levels.

(B) Distribution for the receipt, or expectation of receipt, of a
thing of value, but not for pecuniary gain, increase by 5
levels.

(C) Distribution to a minor, increase by 5 levels.

(D) Distribution to a minor that was intended to persuade, induce,
entice, coerce, or facilitate the travel of, the minor to engage in prohibited
sexual conduct, increase by 7 levels.

(E) Distribution other than distribution described in subdivisions
(A) through (D), increase by 2 levels.

(3) If the offense involved material that portrays sadistic or
masochistic conduct or other depictions of violence, increase by 4
levels.

(4) If the defendant engaged in a pattern of activity involving the
sexual abuse or exploitation of a minor, increase by 5 levels.

(5) If a computer was used for the transmission of the material or a
notice or advertisement of the material, increase by 2 levels.

(c) Cross Reference

(1) If the offense involved causing, transporting, permitting, or
offering or seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of such
conduct, apply §2G2.1 (Sexually Exploiting a Minor by Production of
Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to
Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in
Production) if the resulting offense level is greater than that determined
above.

"Distribution" means any act, including production, transportation,
and possession with intent to distribute, related to the transfer of material
involving the sexual exploitation of a minor.

"Distribution for pecuniary gain" means distribution for
profit.

"Distribution for the receipt, or expectation of receipt, of a thing
of value, but not for pecuniary gain" means any transaction, including
bartering or other in-kind transaction, that is conducted for a thing of value,
but not for profit. "Thing of value" means anything of valuable consideration.
For example, in a case involving the bartering of child pornographic material,
the "thing of value" is the child pornographic material received in exchange
for other child pornographic material bartered in consideration for the
material received.

"Distribution to a minor" means the knowing distribution to an
individual who is a minor at the time of the offense, knowing or believing the
individual is a minor at that time.

"Minor" means an individual who had not attained the age of 18 years.

"Pattern of activity involving the sexual abuse or exploitation of a
minor" means any combination of two or more separate instances of the sexual
abuse or sexual exploitation of a minor by the defendant, whether or not the
abuse or exploitation (A) occurred during the course of the offense; (B)
involved the same or different victims; or (C) resulted in a conviction for
such conduct.

"Prohibited sexual conduct" has the meaning given that term in
Application Note 1 of the Commentary to §2A3.1 (Criminal Sexual Abuse;
Attempt to Commit Criminal Sexual Abuse).

"Sexual abuse or exploitation" means conduct constituting criminal
sexual abuse of a minor, sexual exploitation of a minor, abusive sexual contact
of a minor, any similar offense under state law, or an attempt or conspiracy to
commit any of the above offenses. "Sexual abuse or exploitation" does not
include trafficking in material relating to the sexual abuse or exploitation of
a minor.

"Sexually explicit conduct" has the meaning given that term in 18
U.S.C. § 2256.

2. If the defendant engaged in the sexual abuse or exploitation of a
minor at any time (whether or not such abuse or exploitation occurred during
the course of the offense or resulted in a conviction for such conduct) and
subsection (b)(4) does not apply, an upward departure may be warranted. In
addition, an upward departure may be warranted if the defendant received an
enhancement under subsection (b)(4) but that enhancement does not adequately
reflect the seriousness of the sexual abuse or exploitation involved.

Prior convictions taken into account under subsection (b)(4) are also
counted for purposes of determining criminal history points pursuant to Chapter
Four, Part A (Criminal History).

3. The cross reference in subsection (c)(1) is to be construed
broadly to include all instances where the offense involved employing, using,
persuading, inducing, enticing, coercing, transporting, permitting, or offering
or seeking by notice or advertisement, a minor to engage in sexually explicit
conduct for the purpose of producing any visual depiction of such
conduct.

(1) If the material involved a prepubescent minor or a minor under the
age of twelve years, increase by 2 levels.

(2) If the offense involved possessing ten or more books, magazines,
periodicals, films, video tapes, or other items, containing a visual depiction
involving the sexual exploitation of a minor, increase by 2
levels.

(3) If the defendants possession of the material resulted from
the defendants use of a computer, increase by 2 levels.

(c) Cross References

(1) If the offense involved causing, transporting, permitting, or
offering or seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of such
conduct, apply §2G2.1 (Sexually Exploiting a Minor by Production of
Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to
Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in
Production).

(2) If the offense involved trafficking in material involving the
sexual exploitation of a minor (including receiving, transporting, shipping,
advertising, or possessing material involving the sexual exploitation of a
minor with intent to traffic), apply §2G2.2 (Trafficking in Material
Involving the Sexual Exploitation of a Minor; Receiving, Transporting,
Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor;
Possessing Material Involving the Sexual Exploitation of a Minor with Intent to
Traffic).

2. For purposes of subsection (b)(2), a file that (A) contains a
visual depiction; and (B) is stored on a magnetic, optical, digital, other
electronic, or other storage medium or device, shall be considered to be one
item.

If the offense involved a large number of visual depictions, an
upward departure may be warranted, regardless of whether subsection (b)(2)
applies.

§2G2.5. Recordkeeping Offenses Involving the Production of
Sexually Explicit Materials

(a) Base Offense Level: 6

(b) Cross References

(1) If the offense reflected an effort to conceal a substantive
offense that involved causing, transporting, permitting, or offering or seeking
by notice or advertisement, a minor to engage in sexually explicit conduct for
the purpose of producing a visual depiction of such conduct, apply §2G2.1
(Sexually Exploiting a Minor by Production of Sexually Explicit Visual or
Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit
Conduct; Advertisement for Minors to Engage in Production).

(2) If the offense reflected an effort to conceal a substantive
offense that involved trafficking in material involving the sexual exploitation
of a minor (including receiving, transporting, advertising, or possessing
material involving the sexual exploitation of a minor with intent to traffic),
apply §2G2.2 (Trafficking in Material Involving the Sexual Exploitation of
a Minor; Receiving, Transporting, Advertising, or Possessing Material Involving
the Sexual Exploitation of a Minor with Intent to Traffic).

(A) Distribution for pecuniary gain, increase by the number of
levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud)
corresponding to the retail value of the material, but by not less than 5
levels.

(B) Distribution for the receipt, or expectation of receipt, of a
thing of value, but not for pecuniary gain, increase by 5
levels.

(C) Distribution to a minor, increase by 5 levels.

(D) Distribution to a minor that was intended to persuade, induce,
entice, coerce, or facilitate the travel of, the minor to engage in prohibited
sexual conduct, increase by 7 levels.

(E) Distribution other than distribution described in subdivisions
(A) through (D), increase by 2 levels.

(2) If the offense involved material that portrays sadistic or
masochistic conduct or other depictions of violence, increase by 4
levels.

(c) Cross Reference

(1) If the offense involved transporting, distributing, receiving,
possessing, or advertising to receive material involving the sexual
exploitation of a minor, apply §2G2.2 (Trafficking in Material Involving
the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or
Advertising Material Involving the Sexual Exploitation of a Minor; Possessing
Material Involving the Sexual Exploitation of a Minor with Intent to Traffic)
or §2G2.4 (Possession of Materials Depicting a Minor Engaged in Sexually
Explicit Conduct), as appropriate.

"Distribution" means any act, including production, transportation,
and possession with intent to distribute, related to the transfer of obscene
matter.

"Distribution for pecuniary gain" means distribution for
profit.

"Distribution for the receipt, or expectation of receipt, of a thing
of value, but not for pecuniary gain" means any transaction, including
bartering or other in-kind transaction, that is conducted for a thing of value,
but not for profit. "Thing of value" means anything of valuable consideration.

"Distribution to a minor" means the knowing distribution to an
individual who is a minor at the time of the offense, knowing or believing the
individual is a minor at that time.

"Minor" means an individual who had not attained the age of 16 years.

"Prohibited sexual conduct" has the meaning given that term in
Application Note 1 of the Commentary to §2A3.1 (Criminal Sexual Abuse;
Attempt to Commit Criminal Sexual Abuse).

Background: Most federal prosecutions for offenses covered in
this guideline are directed to offenses involving distribution for pecuniary
gain. Consequently, the offense level under this section generally will be at
least 15.

(1) If a person who received the telephonic communication was less
than eighteen years of age, or if a broadcast was made between six oclock
in the morning and eleven oclock at night, increase by 4
levels.

(2) If 6 plus the offense level from the table in §2B1.1 (Theft,
Property Destruction, and Fraud) corresponding to the volume of commerce
attributable to the defendant is greater than the offense level determined
above, increase to that offense level.

Background: Subsection (b)(1) provides an enhancement where an
obscene telephonic communication was received by a minor less than 18 years of
age or where a broadcast was made during a time when such minors were likely to
receive it. Subsection (b)(2) provides an enhancement for large-scale
"dial-a-porn" or obscene broadcasting operations that results in an offense
level comparable to the offense level for such operations under §2G3.1
(Importing, Mailing, or Transporting Obscene Matter; Transferring Obscene
Matter to a Minor). The extent to which the obscene material was distributed is
approximated by the volume of commerce attributable to the defendant.

1. "Offense guideline applicable to any underlying offense" means the
offense guideline applicable to any conduct established by the offense of
conviction that constitutes an offense under federal, state, or local law
(other than an offense that is itself covered under Chapter Two, Part H,
Subpart 1).

In certain cases, conduct set forth in the count of conviction may
constitute more than one underlying offense (e.g., two instances of
assault, or one instance of assault and one instance of arson). In such cases,
use the following comparative procedure to determine the applicable base
offense level: (i) determine the underlying offenses encompassed within the
count of conviction as if the defendant had been charged with a conspiracy to
commit multiple offenses. See Application Note 4 of §1B1.2
(Applicable Guidelines); (ii) determine the Chapter Two offense level
(i.e., the base offense level, specific offense characteristics, cross
references, and special instructions) for each such underlying offense; and
(iii) compare each of the Chapter Two offense levels determined above with the
alternative base offense level under subsection (a)(2), (3), or (4). The
determination of the applicable alternative base offense level is to be based
on the entire conduct underlying the count of conviction (i.e., the
conduct taken as a whole). Use the alternative base offense level only if it is
greater than each of the Chapter Two offense levels determined above.
Otherwise, use the Chapter Two offense levels for each of the underlying
offenses (with each underlying offense treated as if contained in a separate
count of conviction). Then apply subsection (b) to the alternative base offense
level, or to the Chapter Two offense levels for each of the underlying
offenses, as appropriate.

2. "Participant" is defined in the Commentary to §3B1.1
(Aggravating Role).

3. The burning or defacement of a religious symbol with an intent to
intimidate shall be deemed to involve the threat of force against a person for
the purposes of subsection (a)(3)(A).

4. If the finder of fact at trial or, in the case of a plea of guilty
or nolo contendere, the court at sentencing determines beyond a reasonable
doubt that the defendant intentionally selected any victim or any property as
the object of the offense because of the actual or perceived race, color,
religion, national origin, ethnicity, gender, disability, or sexual orientation
of any person, an additional 3-level enhancement from §3A1.1(a) will
apply. An adjustment from §3A1.1(a) will not apply, however, if a 6-level
adjustment from §2H1.1(b) applies. See §3A1.1(c).

5. If subsection (b)(1) applies, do not apply §3B1.3 (Abuse of
Position of Trust or Use of Special Skill).

(1) 18, if the obstruction occurred by use of force or threat of force
against person(s) or property; or

(2) 12, if the obstruction occurred by forgery, fraud, theft, bribery,
deceit, or other means, except as provided in (3) below; or

(3) 6, if the defendant (A) solicited, demanded, accepted, or agreed
to accept anything of value to vote, refrain from voting, vote for or against a
particular candidate, or register to vote, (B) gave false information to
establish eligibility to vote, or (C) voted more than once in a federal
election.

1. If the offense resulted in bodily injury or significant property
damage, or involved corrupting a public official, an upward departure may be
warranted. See Chapter Five, Part K (Departures).

Background: Alternative base offense levels cover three major
ways of obstructing an election: by force, by deceptive or dishonest conduct,
or by bribery. A defendant who is a public official or who directs others to
engage in criminal conduct is subject to an enhancement from Chapter Three,
Part B (Role in the Offense).

(1) If the purpose of the offense was to obtain direct or indirect
commercial advantage or economic gain, increase by 3 levels.

(c) Cross Reference

(1) If the purpose of the offense was to facilitate another offense,
apply the guideline applicable to an attempt to commit that other offense, if
the resulting offense level is greater than that determined
above.

1. Definitions.For purposes of this guideline, "tax
return" and "tax return information" have the meaning given the terms "return"
and "return information" in 26 U.S.C. § 6103(b)(1) and (2),
respectively.

Background: This section refers to conduct proscribed by
47 U.S.C. § 605 and the Electronic Communications Privacy Act of
1986, which amends 18 U.S.C. § 2511 and other sections of Title 18
dealing with unlawful interception and disclosure of communications. These
statutes proscribe the interception and divulging of wire, oral, radio, and
electronic communications. The Electronic

Communications Privacy Act of 1986 provides for a maximum term of
imprisonment of five years for violations involving most types of
communication.

This section also refers to conduct relating to the disclosure and
inspection of tax returns and tax return information, which is proscribed by 26
U.S.C. §§ 7213(a)(1)-(3), (5), (d), 7213A, and 7216. These statutes
provide for a maximum term of imprisonment of five years for most types of
disclosure of tax return information, but provide a maximum term of
imprisonment of one year for violations of 26 U.S.C. §§ 7213A and
7216.

Background: The statutory provision covered by this guideline
is sometimes used to prosecute offenses more accurately described as theft or
destruction of mail. In such cases, §2B1.1 (Theft, Property Destruction,
and Fraud) is to be applied.

(2) If (A) a dangerous weapon was used, increase by 4 levels; or (B) a
dangerous weapon was brandished, or the use of a dangerous weapon was
threatened, increase by 2 levels.

(3) If any victim was held in a condition of peonage or involuntary
servitude for (A) more than one year, increase by 3 levels; (B) between 180
days and one year, increase by 2 levels; or (C) more than 30 days but less than
180 days, increase by 1 level.

(4) If any other felony offense was committed during the commission
of, or in connection with, the peonage or involuntary servitude offense,
increase to the greater of:

(A) 2 plus the offense level as determined above,
or

(B) 2 plus the offense level from the offense guideline applicable
to that other offense, but in no event greater than level
43.

Commentary

Statutory Provisions: 18 U.S.C. §§ 241, 1581-1590,
1592.

Application Notes:

1. For purposes of this guideline

"A dangerous weapon was used" means that a firearm was discharged, or
that a firearm or other dangerous weapon was otherwise used. "The use of a
dangerous weapon was threatened" means that the use of a dangerous weapon was
threatened regardless of whether a dangerous weapon was present.

Definitions of "firearm," "dangerous weapon," "otherwise used,"
"serious bodily injury," and "permanent or life-threatening bodily injury" are
found in the Commentary to §1B1.1 (Application Instructions).

2. Under subsection (b)(4), "any other felony offense" means any
conduct that constitutes a felony offense under federal, state, or local law
(other than an offense that is itself covered by this subpart). When there is
more than one such other offense, the most serious such offense (or group of
closely related offenses in the case of offenses that would be grouped together
under §3D1.2(d)) is to be used. See Application Note 3 of
§1B1.5 (Interpretation of References to other Offense Guidelines).

3. If the offense involved the holding of more than ten victims in a
condition of peonage or involuntary servitude, an upward departure may be
warranted.

(2)If the defendant committed any part of the instant offense
subsequent to sustaining a civil or administrative adjudication for similar
misconduct, increase by 2 levels.

Commentary

Statutory Provision: 29 U.S.C. § 1851.

Application Notes:

1. Definitions.For purposes of subsection (b)(1),
"bodily injury" and "serious bodily injury" have the meaning given those terms
in Application Note 1 of the Commentary to §1B1.1 (Application
Instructions).

2. Application of Subsection (b)(2).Section 1851 of
title 29, United States Code, covers a wide range of conduct. Accordingly, the
enhancement in subsection (b)(2) applies only if the instant offense is similar
to previous misconduct that resulted in a civil or administrative adjudication
under the provisions of the Migrant and Seasonal Agricultural Worker Protection
Act (29 U.S.C. § 1801 et. seq.).

1. Because misconduct constituting contempt varies significantly and
the nature of the contemptuous conduct, the circumstances under which the
contempt was committed, the effect the misconduct had on the administration of
justice, and the need to vindicate the authority of the court are highly
context-dependent, the Commission has not provided a specific guideline for
this offense. In certain cases, the offense conduct will be sufficiently
analogous to §2J1.2 (Obstruction of Justice) for that guideline to
apply.

2. For offenses involving the willful failure to pay court-ordered
child support (violations of 18 U.S.C. § 228), the most analogous
guideline is §2B1.1 (Theft, Property Destruction, and Fraud). The amount
of the loss is the amount of child support that the defendant willfully failed
to pay. Note: This guideline applies to second and subsequent offenses under 18
U.S.C. § 228(a)(1) and to any offense under 18 U.S.C. § 228(a)(2) and
(3). A first offense under 18 U.S.C. § 228(a)(1) is not covered by this
guideline because it is a Class B misdemeanor.

(1) If the offense involved causing or threatening to cause physical
injury to a person, or property damage, in order to obstruct the administration
of justice, increase by 8 levels.

(2)If the offense resulted in substantial interference with the
administration of justice, increase by 3 levels.

(c)Cross Reference

(1)If the offense involved obstructing the investigation or
prosecution of a criminal offense, apply §2X3.1 (Accessory After the Fact)
in respect to that criminal offense, if the resulting offense level is greater
than that determined above.

1. "Substantial interference with the administration of justice"
includes a premature or improper termination of a felony investigation; an
indictment, verdict, or any judicial determination based upon perjury, false
testimony, or other false evidence; or the unnecessary expenditure of
substantial governmental or court resources.

2. For offenses covered under this section, Chapter Three, Part C
(Obstruction) does not apply, unless the defendant obstructed the investigation
or trial of the obstruction of justice count.

3. In the event that the defendant is convicted under this section as
well as for the underlying offense (i.e., the offense that is the object
of the obstruction), see the Commentary to Chapter Three, Part C
(Obstruction), and to §3D1.2(c) (Groups of Closely Related
Counts).

4. If a weapon was used, or bodily injury or significant property
damage resulted, a departure may be warranted. See Chapter Five, Part K
(Departures).

5. The inclusion of "property damage" under subsection (b)(1) is
designed to address cases in which property damage is caused or threatened as a
means of intimidation or retaliation (e.g., to intimidate a witness
from, or retaliate against a witness for, testifying). Subsection (b)(1) is not
intended to apply, for example, where the offense consisted of destroying a
ledger containing an incriminating entry.

Background: This section addresses offenses involving the
obstruction of justice generally prosecuted under the above-referenced
statutory provisions. Numerous offenses of varying seriousness may constitute
obstruction of justice: using threats or force to intimidate or influence a
juror or federal officer; obstructing a civil or administrative proceeding;
stealing or altering court records; unlawfully intercepting grand jury
deliberations; obstructing a criminal investigation; obstructing a state or
local investigation of illegal gambling; using intimidation or force to
influence testimony, alter evidence, evade legal process, or obstruct the
communication of a judge or law enforcement officer; or causing a witness
bodily injury or property damage in retaliation for providing testimony,
information or evidence in a federal proceeding. The conduct that gives rise to
the violation may, therefore, range from a mere threat to an act of extreme
violence.

The specific offense characteristics reflect the more serious forms
of obstruction. Because the conduct covered by this guideline is frequently
part of an effort to avoid punishment for an offense that the defendant has
committed or to assist another person to escape punishment for an offense, a
cross reference to §2X3.1 (Accessory After the Fact) is provided. Use of
this cross reference will provide an enhanced offense level when the
obstruction is in respect to a particularly serious offense, whether such
offense was committed by the defendant or another person.

(1)If the offense involved causing or threatening to cause physical
injury to a person, or property damage, in order to suborn perjury, increase by
8 levels.

(2)If the perjury, subornation of perjury, or witness bribery resulted
in substantial interference with the administration of justice, increase by 3
levels.

(c)Cross Reference

(1)If the offense involved perjury, subornation of perjury, or witness
bribery in respect to a criminal offense, apply §2X3.1 (Accessory After
the Fact) in respect to that criminal offense, if the resulting offense level
is greater than that determined above.

(d)Special Instruction

(1)In the case of counts of perjury or subornation of perjury arising
from testimony given, or to be given, in separate proceedings, do not group the
counts together under §3D1.2 (Groups of Closely Related
Counts).

1. "Substantial interference with the administration of justice"
includes a premature or improper termination of a felony investigation; an
indictment, verdict, or any judicial determination based upon perjury, false
testimony, or other false evidence; or the unnecessary expenditure of
substantial governmental or court resources.

2. For offenses covered under this section, Chapter Three, Part C
(Obstruction) does not apply, unless the defendant obstructed the investigation
or trial of the perjury count.

3. In the event that the defendant is convicted under this section as
well as for the underlying offense (i.e., the offense with respect to
which he committed perjury, subornation of perjury, or witness bribery),
see the Commentary to Chapter Three, Part C (Obstruction), and to
§3D1.2(c) (Groups of Closely Related Counts).

4. If a weapon was used, or bodily injury or significant property
damage resulted, an upward departure may be warranted. See Chapter Five,
Part K (Departures).

5. "Separate proceedings," as used in subsection (d)(1), includes
different proceedings in the same case or matter (e.g., a grand jury
proceeding and a trial, or a trial and retrial), and proceedings in separate
cases or matters (e.g., separate trials of codefendants), but does not
include multiple grand jury proceedings in the same case.

Background: This section applies to perjury, subornation of
perjury, and witness bribery, generally prosecuted under the referenced
statutes. The guidelines provide a higher penalty for perjury than the
pre-guidelines practice estimate of ten months imprisonment. The Commission
believes that perjury should be treated similarly to obstruction of justice.
Therefore, the same considerations for enhancing a sentence are applied in the
specific offense characteristics, and an alternative reference to the guideline
for accessory after the fact is made.

1. "Substantial interference with the administration of justice"
includes a premature or improper termination of a felony investigation; an
indictment, verdict, or any judicial determination based upon perjury, false
testimony, or other false evidence; or the unnecessary expenditure of
substantial governmental or court resources.

2. By statute, a term of imprisonment imposed for this offense runs
consecutively to any other term of imprisonment imposed. 18 U.S.C. §
3146(b)(2).

Background: This section applies to a failure to appear by a
material witness. The base offense level incorporates a distinction as to
whether the failure to appear was in respect to a felony or misdemeanor
prosecution. This offense covered by this section is a misdemeanor for which
the maximum period of imprisonment authorized by statute is one year.

(1)11, if the offense constituted a failure to report for service of
sentence; or

(2)6, otherwise.

(b)Specific Offense Characteristics

(1)If the base offense level is determined under subsection (a)(1),
and the defendant --

(A) voluntarily surrendered within 96 hours of the time he was
originally scheduled to report, decrease by 5 levels;
or

(B) was ordered to report to a community corrections center,
community treatment center, "halfway house," or similar facility, and
subdivision (A) above does not apply, decrease by 2
levels.

Provided, however, that this reduction shall not apply if the
defendant, while away from the facility, committed any federal, state, or local
offense punishable by a term of imprisonment of one year or
more.

(2)If the base offense level is determined under subsection (a)(2),
and the underlying offense is --

(A)punishable by death or imprisonment for a term of fifteen years
or more, increase by 9 levels; or

(B)punishable by a term of imprisonment of five years or more, but
less than fifteen years, increase by 6 levels; or

(C)a felony punishable by a term of imprisonment of less than five
years, increase by 3 levels.

Commentary

Statutory Provision: 18 U.S.C. § 3146(b)(1).

Application Notes:

1. "Underlying offense" means the offense in respect to which the
defendant failed to appear.

2. For offenses covered under this section, Chapter Three, Part C
(Obstruction) does not apply, unless the defendant obstructed the investigation
or trial of the failure to appear count.

3. In the case of a failure to appear for service of sentence, any
term of imprisonment imposed on the failure to appear count is to be imposed
consecutively to any term of imprisonment imposed for the underlying offense.
See §5G1.3(a). The guideline range for the failure to appear count
is to be determined independently and the grouping rules of
§§3D1.1-3D1.5 do not apply.

However, in the case of a conviction on both the underlying offense
and the failure to appear, other than a case of failure to appear for service
of sentence, the failure to appear is treated under §3C1.1 (Obstructing or
Impeding the Administration of Justice) as an obstruction of the underlying
offense, and the failure to appear count and the count or counts for the
underlying offense are grouped together under §3D1.2(c). (Note that
18 U.S.C. § 3146(b)(2) does not require a sentence of imprisonment on
a failure to appear count, although if a sentence of imprisonment on the
failure to appear count is imposed, the statute requires that the sentence be
imposed to run consecutively to any other sentence of imprisonment. Therefore,
unlike a count in which the statute mandates both a minimum and a consecutive
sentence of imprisonment, the grouping rules of §§3D1.1-3D1.5 apply.
See §3D1.1(b), comment. (n.1), and §3D1.2, comment. (n.1).)
The combined sentence will then be constructed to provide a "total punishment"
that satisfies the requirements both of §5G1.2 (Sentencing on Multiple
Counts of Conviction) and 18 U.S.C. § 3146(b)(2). For example,
if the combined applicable guideline range for both counts is 30-37 months and
the court determines that a "total punishment" of 36 months is appropriate, a
sentence of 30 months for the underlying offense plus a consecutive six
months sentence for the failure to appear count would satisfy these
requirements. (Note that the combination of this instruction and increasing the
offense level for the obstructive, failure to appear conduct has the effect of
ensuring an incremental, consecutive punishment for the failure to appear
count, as required by 18 U.S.C. § 3146(b)(2).)

4. If a defendant is convicted of both the underlying offense and the
failure to appear count, and the defendant committed additional acts of
obstructive behavior (e.g., perjury) during the investigation,
prosecution, or sentencing of the instant offense, an upward departure may be
warranted. The upward departure will ensure an enhanced sentence for
obstructive conduct for which no adjustment under §3C1.1 (Obstruction of
Justice) is made because of the operation of the rules set out in Application
Note 3.

5. In some cases, the defendant may be sentenced on the underlying
offense (the offense in respect to which the defendant failed to appear) before
being sentenced on the failure to appear offense. In such cases, criminal
history points for the sentence imposed on the underlying offense are to be
counted in determining the guideline range on the failure to appear offense
only where the offense level is determined under subsection (a)(1)
(i.e., where the offense constituted a failure to report for service of
sentence).

Background: This section applies to a failure to appear by a
defendant who was released pending trial, sentencing, appeal, or surrender for
service of sentence. Where the base offense level is determined under
subsection (a)(2), the offense level increases in relation to the statutory
maximum of the underlying offense.

If an enhancement under 18 U.S.C. § 3147 applies, add 3
levels to the offense level for the offense committed while on release as if
this section were a specific offense characteristic contained in the offense
guideline for the offense committed while on release.

Commentary

Statutory Provision: 18 U.S.C. § 3147.

Application Notes:

1. Because 18 U.S.C. § 3147 is an enhancement provision, rather
than an offense, this section provides a specific offense characteristic to
increase the offense level for the offense committed while on release.

2. Under 18 U.S.C. § 3147, a sentence of imprisonment must be
imposed in addition to the sentence for the underlying offense, and the
sentence of imprisonment imposed under 18 U.S.C. § 3147 must run
consecutively to any other sentence of imprisonment. Therefore, the court, in
order to comply with the statute, should divide the sentence on the judgment
form between the sentence attributable to the underlying offense and the
sentence attributable to the enhancement. The court will have to ensure that
the "total punishment" (i.e., the sentence for the offense committed
while on release plus the sentence enhancement under 18 U.S.C. §
3147) is in accord with the guideline range for the offense committed while on
release, as adjusted by the enhancement in this section. For example, if the
applicable adjusted guideline range is 30-37 months and the court determines
"total punishment" of 36 months is appropriate, a sentence of 30 months for the
underlying offense plus 6 months under 18 U.S.C. § 3147 would satisfy this
requirement.

Background: An enhancement under 18 U.S.C.
§ 3147 may be imposed only after sufficient notice to the defendant
by the government or the court, and applies only in the case of a conviction
for a federal offense that is committed while on release on another federal
charge.

Legislative history indicates that the mandatory nature of the
penalties required by 18 U.S.C. § 3147 was to be eliminated upon
the implementation of the sentencing guidelines. "Section 213(h) [renumbered as
§200(g) in the Crime Control Act of 1984] amends the new provision in
title I of this Act relating to consecutive enhanced penalties for committing
an offense on release (new 18 U.S.C. § 3147) by eliminating the
mandatory nature of the penalties in favor of utilizing sentencing guidelines."
(Senate Report 98-225 at 186). Not all of the phraseology relating to the
requirement of a mandatory sentence, however, was actually deleted from the
statute. Consequently, it appears that the court is required to impose a
consecutive sentence of imprisonment under this provision, but there is no
requirement as to any minimum term. This guideline is drafted to enable the
court to determine and implement a combined "total punishment" consistent with
the overall structure of the guidelines, while at the same time complying with
the statutory requirement. Guideline provisions that prohibit the grouping of
counts of conviction requiring consecutive sentences (e.g., the
introductory paragraph of §3D1.2; §5G1.2(a)) do not apply to this
section because 18 U.S.C. § 3147 is an enhancement, not a count of
conviction.

(1)If the payment was made or offered for refusing to testify or for
the witness absenting himself to avoid testifying, increase by 4
levels.

Commentary

Statutory Provisions: 18 U.S.C. § 201(c)(2), (3).

Application Notes:

1. For offenses covered under this section, Chapter Three, Part C
(Obstruction) does not apply unless the defendant obstructed the investigation
or trial of the payment to witness count.

2. In the event that the defendant is convicted under this section as
well as for the underlying offense (i.e., the offense with respect to
which the payment was made), see the Commentary to Chapter Three, Part C
(Obstruction), and to §3D1.2(c) (Groups of Closely Related
Counts).

Background: This section applies to witness gratuities in
federal proceedings.

(3) If the defendant used or possessed any explosive material in
connection with another felony offense; or possessed or transferred any
explosive material with knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony offense, increase by 4
levels. If the resulting offense level is less than level 18, increase to level
18.

(c)Cross Reference

(1) If the defendant used or possessed any explosive material in
connection with the commission or attempted commission of another offense, or
possessed or transferred any explosive material with knowledge or intent that
it would be used or possessed in connection with another offense, apply
--

(A) §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to
that other offense if the resulting offense level is greater than that
determined above; or

(B) if death resulted, the most analogous offense guideline from
Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is
greater than that determined above.

1."Explosive material(s)" include explosives, blasting agents, and
detonators. See 18 U.S.C. § 841(c). "Explosives" is defined at
18 U.S.C. § 844(j). A destructive device, defined in the Commentary to
§1B1.1 (Application Instructions), may contain explosive materials. Where
the conduct charged in the count of which the defendant was convicted
establishes that the offense involved a destructive device, apply §2K2.1
(Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition;
Prohibited Transactions Involving Firearms or Ammunition) if the resulting
offense level is greater.

2. For purposes of this guideline:

"Controlled substance offense" has the meaning given that term in
§4B1.2(b) and Application Note 1 of the Commentary to §4B1.2
(Definitions of Terms Used in Section 4B1.1).

"Crime of violence" has the meaning given that term in §4B1.2(a)
and Application Note 1 of the Commentary to §4B1.2.

"Felony conviction" means a prior adult federal or state conviction
for an offense punishable by death or imprisonment for a term exceeding one
year, regardless of whether such offense is specifically designated as a felony
and regardless of the actual sentence imposed. A conviction for an offense
committed at age eighteen years or older is an adult conviction. A conviction
for an offense committed prior to age eighteen years is an adult conviction if
it is classified as an adult conviction under the laws of the jurisdiction in
which the defendant was convicted (e.g., a federal conviction for an
offense committed prior to the defendants eighteenth birthday is an adult
conviction if the defendant was expressly proceeded against as an
adult).

4. "Felony offense," as used in subsection (b)(3), means any offense
(federal, state, or local) punishable by imprisonment for a term exceeding one
year, whether or not a criminal charge was brought, or conviction
obtained.

5. For purposes of calculating the weight of explosive materials
under subsection (b)(1), include only the weight of the actual explosive
material and the weight of packaging material that is necessary for the use or
detonation of the explosives. Exclude the weight of any other shipping or
packaging materials. For example, the paper and fuse on a stick of dynamite
would be included; the box that the dynamite was shipped in would not be
included.

6. For purposes of calculating the weight of explosive materials
under subsection (b)(1), count only those explosive materials that were
unlawfully sought to be obtained, unlawfully possessed, or unlawfully
distributed, including any explosive material that a defendant attempted to
obtain by making a false statement.

7. If the defendant is convicted under 18 U.S.C. § 842(h)
(offense involving stolen explosive materials), and is convicted of no other
offenses subject to this guideline, do not apply the adjustment in subsection
(b)(2) because the base offense level itself takes such conduct into
account.

8. Under subsection (c)(1), the offense level for the underlying
offense (which may be a federal, state, or local offense) is to be determined
under §2X1.1 (Attempt, Solicitation, or Conspiracy) or, if death results,
under the most analogous guideline from Chapter Two, Part A, Subpart 1
(Homicide).

9. For purposes of applying subsection (a)(1) or (2), use only those
felony convictions that receive criminal history points under §4A1.1(a),
(b), or (c). In addition, for purposes of applying subsection (a)(1), use only
those felony convictions that are counted separately under §4A1.1(a), (b),
or (c). See §4A1.2(a)(2); §4A1.2, comment. (n.3).

Prior felony conviction(s) resulting in an increased base offense
level under subsection (a)(1), (a)(2), or (a)(3) are also counted for purposes
of determining criminal history points pursuant to Chapter Four, Part A
(Criminal History).

10. An upward departure may be warranted in any of the following
circumstances: (1) the quantity of explosive materials significantly exceeded
1000 pounds; (2) the explosive materials were of a nature more volatile or
dangerous than dynamite or conventional powder explosives (e.g., plastic
explosives); (3) the defendant knowingly distributed explosive materials to a
person under twenty-one years of age; or (4) the offense posed a substantial
risk of death or bodily injury to multiple individuals.

11. As used in subsections (b)(3) and (c)(1), "another felony
offense" and "another offense" refer to offenses other than explosives or
firearms possession or trafficking offenses. However, where the defendant used
or possessed a firearm or explosive to facilitate another firearms or
explosives offense (e.g., the defendant used or possessed a firearm to
protect the delivery of an unlawful shipment of explosives), an upward
departure under §5K2.6 (Weapons and Dangerous Instrumentalities) may be
warranted.

(1) 24, if the offense (A) created a substantial risk of death or
serious bodily injury to any person other than a participant in the offense,
and that risk was created knowingly; or (B) involved the destruction or
attempted destruction of a dwelling;

(2) 20, if the offense (A) created a substantial risk of death or
serious bodily injury to any person other than a participant in the offense;
(B) involved the destruction or attempted destruction of a structure other than
a dwelling; or (C) endangered a dwelling, or a structure other than a dwelling;
or

(1) If the offense was committed to conceal another offense, increase
by 2 levels.

(2) If the base offense level is not determined under (a)(3), and the
offense occurred on a national cemetery, increase by 2 levels.

(c)Cross Reference

(1) If death resulted, or the offense was intended to cause death or
serious bodily injury, apply the most analogous guideline from Chapter Two,
Part A (Offenses Against the Person) if the resulting offense level is greater
than that determined above.

1. If bodily injury resulted, an upward departure may be warranted.
See Chapter Five, Part K (Departures).

2. Creating a substantial risk of death or serious bodily injury
includes creating that risk to fire fighters and other emergency and law
enforcement personnel who respond to or investigate an offense.

3. "Explosives," as used in the title of this guideline, includes any
explosive, explosive material, or destructive device.

4. "National cemetery " means a cemetery (A) established under
section 2400 of title 38, United States Code; or (B) under the jurisdiction of
the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air
Force, or the Secretary of the Interior.

Background: Subsection (b)(2) implements the directive to the
Commission in section 2 of Public Law 105101.

§2K1.5. Possessing Dangerous Weapons or Materials While
Boarding or Aboard an Aircraft

(a) Base Offense Level: 9

(b) Specific Offense Characteristics

If more than one applies, use the greatest:

(1) If the offense was committed willfully and without regard for the
safety of human life, or with reckless disregard for the safety of human life,
increase by 15 levels.

(2) If the defendant was prohibited by another federal law from
possessing the weapon or material, increase by 2 levels.

(3) If the defendants possession of the weapon or material would
have been lawful but for 49 U.S.C. § 46505 and he acted with
mere negligence, decrease by 3 levels.

(c)Cross Reference

(1) If the defendant used or possessed the weapon or material in
committing or attempting another offense, apply the guideline for such other
offense, or §2X1.1 (Attempt, Solicitation, or Conspiracy), as appropriate,
if the resulting offense level is greater than that determined
above.

Background: This guideline provides an enhancement where the
defendant was a person prohibited by federal law from possession of the weapon
or material. A decrease is provided in a case of mere negligence where the
defendant was otherwise authorized to possess the weapon or material.

(1) 26, if the offense involved a firearm described in 26 U.S.C.
§ 5845(a) or 18 U.S.C. § 921(a)(30), and the defendant
committed any part of the instant offense subsequent to sustaining at least two
felony convictions of either a crime of violence or a controlled substance
offense;

(2) 24, if the defendant committed any part of the instant offense
subsequent to sustaining at least two felony convictions of either a crime of
violence or a controlled substance offense;

(3) 22, if the offense involved a firearm described in 26 U.S.C.
§ 5845(a) or 18 U.S.C. § 921(a)(30), and the defendant
committed any part of the instant offense subsequent to sustaining one felony
conviction of either a crime of violence or a controlled substance
offense;

(4) 20, if --

(A) the defendant committed any part of the instant offense
subsequent to sustaining one felony conviction of either a crime of violence or
a controlled substance offense; or

(B) the offense involved a firearm described in 26 U.S.C. §
5845(a) or 18 U.S.C. § 921(a)(30); and the defendant (i) was a
prohibited person at the time the defendant committed the instant offense; or
(ii) is convicted under 18 U.S.C. § 922(d);

(5) 18, if the offense involved a firearm described in 26 U.S.C.
§ 5845(a) or 18 U.S.C. § 921(a)(30);

(6) 14, if the defendant (A) was a prohibited person at the time the
defendant committed the instant offense; or (B) is convicted under 18 U.S.C.
§ 922(d);

(1) If the offense involved three or more firearms, increase as
follows:

Number of
Firearms

Increase in
Level

(A)

3-7

add 2

(B)

8-24

add 4

(C)

25-99

add 6

(D)

100-199

add 8

(E)

200 or more

add 10.

(2) If the defendant, other than a defendant subject to subsection
(a)(1), (a)(2), (a)(3), (a)(4), or (a)(5), possessed all ammunition and
firearms solely for lawful sporting purposes or collection, and did not
unlawfully discharge or otherwise unlawfully use such firearms or ammunition,
decrease the offense level determined above to level 6.

(3) If the offense involved a destructive device, increase by 2
levels.

(4) If any firearm was stolen, or had an altered or obliterated serial
number, increase by 2 levels.

(5) If the defendant used or possessed any firearm or ammunition in
connection with another felony offense; or possessed or transferred any firearm
or ammunition with knowledge, intent, or reason to believe that it would be
used or possessed in connection with another felony offense, increase by 4
levels. If the resulting offense level is less than level 18, increase to level
18.

(6) If a recordkeeping offense reflected an effort to conceal a
substantive offense involving firearms or ammunition, increase to the offense
level for the substantive offense.

(c) Cross Reference

(1) If the defendant used or possessed any firearm or ammunition in
connection with the commission or attempted commission of another offense, or
possessed or transferred a firearm or ammunition with knowledge or intent that
it would be used or possessed in connection with another offense, apply
--

(A) §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to
that other offense, if the resulting offense level is greater than that
determined above; or

(B) if death resulted, the most analogous offense guideline from
Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is
greater than that determined above.

1. "Firearm" includes (i) any weapon (including a starter gun) which
will, or is designed to, or may readily be converted to, expel a projectile by
the action of an explosive; (ii) the frame or receiver of any such weapon;
(iii) any firearm muffler or silencer; or (iv) any destructive device.
See 18 U.S.C. § 921(a)(3).

2. "Ammunition" includes ammunition or cartridge cases, primer,
bullets, or propellent powder designed for use in any firearm. See 18
U.S.C. § 921(a)(17)(A).

3. A "firearm described in 26 U.S.C. § 5845(a)" includes: (i) a
shotgun having a barrel or barrels of less than 18 inches in length; a weapon
made from a shotgun if such weapon as modified has an overall length of less
than 26 inches or a barrel or barrels of less than 18 inches in length; a rifle
having a barrel or barrels of less than 16 inches in length; or a weapon made
from a rifle if such weapon as modified has an overall length of less than 26
inches or a barrel or barrels of less than 16 inches in length; (ii) a
machinegun; (iii) a silencer; (iv) a destructive device; and (v) certain
unusual weapons defined in 26 U.S.C. § 5845(e) (that are not
conventional, unaltered handguns, rifles, or shotguns). For a more detailed
definition, refer to 26 U.S.C. § 5845.

A "firearm described in 18 U.S.C. § 921(a)(30)" (pertaining to
semiautomatic assault weapons) does not include a weapon exempted under the
provisions of 18 U.S.C. § 922(v)(3).

4. "Destructive device" is a type of firearm listed in 26 U.S.C.
§ 5845(a), and includes any explosive, incendiary, or poison gas -- (i)
bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four
ounces, (iv) missile having an explosive or incendiary charge of more than
one-quarter ounce, (v) mine, or (vi) device similar to any of the devices
described in the preceding clauses; any type of weapon which will, or which may
be readily converted to, expel a projectile by the action of an explosive or
other propellant, and which has any barrel with a bore of more than one-half
inch in diameter; or any combination of parts either designed or intended for
use in converting any device into any destructive device listed above. For a
more detailed definition, refer to 26 U.S.C. § 5845(f).

5. For purposes of this guideline:

"Controlled substance offense" has the meaning given that term in
§4B1.2(b) and Application Note 1 of the Commentary to §4B1.2
(Definitions of Terms Used in Section 4B1.1).

"Crime of violence" has the meaning given that term in §4B1.2(a)
and Application Note 1 of the Commentary to §4B1.2.

"Felony conviction" means a prior adult federal or state conviction
for an offense punishable by death or imprisonment for a term exceeding one
year, regardless of whether such offense is specifically designated as a felony
and regardless of the actual sentence imposed. A conviction for an offense
committed at age eighteen years or older is an adult conviction. A conviction
for an offense committed prior to age eighteen years is an adult conviction if
it is classified as an adult conviction under the laws of the jurisdiction in
which the defendant was convicted (e.g., a federal conviction for an
offense committed prior to the defendants eighteenth birthday is an adult
conviction if the defendant was expressly proceeded against as an
adult).

6. For purposes of subsections (a)(4)(B) and (a)(6), "prohibited
person" means any person described in 18 U.S.C. § 922(g) or §
922(n).

7. "Felony offense," as used in subsection (b)(5), means any offense
(federal, state, or local) punishable by imprisonment for a term exceeding one
year, whether or not a criminal charge was brought, or conviction
obtained.

8. Subsection (a)(7) includes the interstate transportation or
interstate distribution of firearms, which is frequently committed in violation
of state, local, or other federal law restricting the possession of firearms,
or for some other underlying unlawful purpose. In the unusual case in which it
is established that neither avoidance of state, local, or other federal
firearms law, nor any other underlying unlawful purpose was involved, a
reduction in the base offense level to no lower than level 6 may be warranted
to reflect the less serious nature of the violation.

9. For purposes of calculating the number of firearms under
subsection (b)(1), count only those firearms that were unlawfully sought to be
obtained, unlawfully possessed, or unlawfully distributed, including any
firearm that a defendant obtained or attempted to obtain by making a false
statement to a licensed dealer.

10. Under subsection (b)(2), "lawful sporting purposes or collection"
as determined by the surrounding circumstances, provides for a reduction to an
offense level of 6. Relevant surrounding circumstances include the number and
type of firearms, the amount and type of ammunition, the location and
circumstances of possession and actual use, the nature of the defendants
criminal history (e.g., prior convictions for offenses involving
firearms), and the extent to which possession was restricted by local law. Note
that where the base offense level is determined under subsections (a)(1) -
(a)(5), subsection (b)(2) is not applicable.

11. A defendant whose offense involves a destructive device receives
both the base offense level from the subsection applicable to a firearm listed
in 26 U.S.C. § 5845(a) (e.g., subsection (a)(1), (a)(3), (a)(4)(B),
or (a)(5)), and a two-level enhancement under subsection (b)(3). Such devices
pose a considerably greater risk to the public welfare than other National
Firearms Act weapons.

12.If the only offense to which §2K2.1 applies is 18 U.S.C.
§ 922(i), (j), or (u), or 18 U.S.C. § 924(l) or (m) (offenses
involving a stolen firearm or stolen ammunition) and the base offense level is
determined under subsection (a)(7), do not apply the adjustment in subsection
(b)(4) unless the offense involved a firearm with an altered or obliterated
serial number. This is because the base offense level takes into account that
the firearm or ammunition was stolen.

Similarly, if the offense to which §2K2.1 applies is 18 U.S.C.
§ 922(k) or 26 U.S.C. § 5861(g) or (h) (offenses involving an altered
or obliterated serial number) and the base offense level is determined under
subsection (a)(7), do not apply the adjustment in subsection (b)(4) unless the
offense involved a stolen firearm or stolen ammunition. This is because the
base offense level takes into account that the firearm had an altered or
obliterated serial number.

13.Under subsection (b)(6), if a record-keeping offense was committed
to conceal a substantive firearms or ammunition offense, the offense level is
increased to the offense level for the substantive firearms or ammunition
offense (e.g., if the defendant falsifies a record to conceal the sale
of a firearm to a prohibited person, the offense level is increased to the
offense level applicable to the sale of a firearm to a prohibited
person).

14.Under subsection (c)(1), the offense level for the underlying
offense (which may be a federal, state, or local offense) is to be determined
under §2X1.1 (Attempt, Solicitation, or Conspiracy) or, if death results,
under the most analogous guideline from Chapter Two, Part A, Subpart 1
(Homicide).

15.For purposes of applying subsection (a)(1), (2), (3), or (4)(A),
use only those felony convictions that receive criminal history points under
§4A1.1(a), (b), or (c). In addition, for purposes of applying subsection
(a)(1) and (a)(2), use only those felony convictions that are counted
separately under §4A1.1(a), (b), or (c). See §4A1.2(a)(2);
§4A1.2, comment. (n.3).

Prior felony conviction(s) resulting in an increased base offense
level under subsection (a)(1), (a)(2), (a)(3), (a)(4)(A), (a)(4)(B), or (a)(6)
are also counted for purposes of determining criminal history points pursuant
to Chapter Four, Part A (Criminal History).

16.An upward departure may be warranted in any of the following
circumstances: (1) the number of firearms substantially exceeded 200; (2) the
offense involved multiple National Firearms Act weapons (e.g.,
machineguns, destructive devices), military type assault rifles, non-detectable
("plastic") firearms (defined at 18 U.S.C. § 922(p)); (3) the offense
involved large quantities of armor-piercing ammunition (defined at 18 U.S.C.
§ 921(a)(17)(B)); or (4) the offense posed a substantial risk of
death or bodily injury to multiple individuals.

17.A defendant who is subject to an enhanced sentence under the
provisions of 18 U.S.C. § 924(e) is an Armed Career Criminal. See
§4B1.4.

18. As used in subsections (b)(5) and (c)(1), "another felony
offense" and "another offense" refer to offenses other than explosives or
firearms possession or trafficking offenses. However, where the defendant used
or possessed a firearm or explosive to facilitate another firearms or
explosives offense (e.g., the defendant used or possessed a firearm to
protect the delivery of an unlawful shipment of explosives), an upward
departure under §5K2.6 (Weapons and Dangerous Instrumentalities) may be
warranted.

19. The enhancement under subsection (b)(4) for a stolen firearm or a
firearm with an altered or obliterated serial number applies whether or not the
defendant knew or had reason to believe that the firearm was stolen or had an
altered or obliterated serial number.

Historical Note: Section 2K2.3 (Receiving,
Transporting, Shipping or Transferring a Firearm or Ammunition With Intent to
Commit Another Offense, or With Knowledge that It Will Be Used in Committing
Another Offense), effective November 1, 1989 (see Appendix C, amendment
189), was deleted by consolidation with §2K2.1 effective November 1, 1991
(see Appendix C, amendment 374). A former §2K2.3 (Prohibited
Transactions in or Shipment of Firearms and Other Weapons), effective November
1, 1987, was deleted by consolidation with §2K2.2 effective November 1,
1989 (see Appendix C, amendment 189).

§2K2.4. Use of Firearm, Armor-Piercing Ammunition, or
Explosive During or in Relation to Certain Crimes

(a) If the defendant, whether or not convicted of another crime, was
convicted of violating:

(1) Section 844(h) of title 18, United States Code, the guideline
sentence is the term of imprisonment required by statute.

(2) Section 924(c) or section 929(a) of title 18, United States
Code, the guideline sentence is the minimum term of imprisonment required by
statute.

(b) Special Instructions for Fines

(1) Where there is a federal conviction for the underlying offense,
the fine guideline shall be the fine guideline that would have been applicable
had there only been a conviction for the underlying offense. This guideline
shall be used as a consolidated fine guideline for both the underlying offense
and the conviction underlying this section.

Commentary

Statutory Provisions: 18 U.S.C. §§ 844(h), 924(c),
929(a).

Application Notes:

1. Section 844(h) of title 18, United State Code, provides a
mandatory term of imprisonment of 10 years (or 20 years for the second or
subsequent offense). Sections 924(c) and 929(a) of title 18, United States
Code, provide mandatory minimum terms of imprisonment (e.g., not less
than five years). Subsection (a) reflects this distinction. Accordingly, the
guideline sentence for a defendant convicted under 18 U.S.C. § 844(h) is
the term required by the statute, and the guideline sentence for a defendant
convicted under 18 U.S.C. § 924(c) or § 929(a) is the minimum term
required by the relevant statute. Each of 18 U.S.C. §§ 844(h),
924(c), and 929(a) requires a term of imprisonment imposed under this section
to run consecutively to any other term of imprisonment.

A sentence above the minimum term required by 18 U.S.C. § 924(c)
or § 929(a) is an upward departure from the guideline sentence. A
departure may be warranted, for example, to reflect the seriousness of the
defendants criminal history, particularly in a case in which the
defendant is convicted of an 18 U.S.C. § 924(c) or § 929(a) offense
and has at least two prior felony convictions for a crime of violence or a
controlled substance offense that would have resulted in application of
§4B1.1 (Career Offender) if that guideline applied to these offenses.
See Application Note 3.

2. If a sentence under this guideline is imposed in conjunction with
a sentence for an underlying offense, do not apply any specific offense
characteristic for possession, brandishing, use, or discharge of an explosive
or firearm when determining the sentence for the underlying offense. A sentence
under this guideline accounts for any explosive or weapon enhancement for the
underlying offense of conviction, including any such enhancement that would
apply based on conduct for which the defendant is accountable under §1B1.3
(Relevant Conduct). Do not apply any weapon enhancement in the guideline for
the underlying offense, for example, if (A) a co-defendant, as part of the
jointly undertaken criminal activity, possessed a firearm different from the
one for which the defendant was convicted under 18 U.S.C. § 924(c); or (B)
in an ongoing drug trafficking offense, the defendant possessed a firearm other
than the one for which the defendant was convicted under 18 U.S.C. §
924(c). However, if a defendant is convicted of two armed bank robberies, but
is convicted under 18 U.S.C. § 924(c) in connection with only one of the
robberies, a weapon enhancement would apply to the bank robbery which was not
the basis for the 18 U.S.C. § 924(c) conviction.

If the explosive or weapon that was possessed, brandished, used, or
discharged in the course of the underlying offense also results in a conviction
that would subject the defendant to an enhancement under §2K1.3(b)(3)
(pertaining to possession of explosive material in connection with another
felony offense) or §2K2.1(b)(5) (pertaining to possession of any firearm
or ammunition in connection with another felony offense), do not apply that
enhancement. A sentence under this guideline accounts for the conduct covered
by these enhancements because of the relatedness of that conduct to the conduct
that forms the basis for the conviction under 18 U.S.C. § 844(h), §
924(c) or § 929(a). For example, if in addition to a conviction for an
underlying offense of armed bank robbery, the defendant was convicted of being
a felon in possession under 18 U.S.C. § 922(g), the enhancement under
§2K2.1(b)(5) would not apply.

In a few cases, the offense level for the underlying offense
determined under the preceding paragraphs may result in a guideline range that,
when combined with the mandatory consecutive sentence under 18
U.S.C. § 844(h), § 924(c), or § 929(a), produces a
total maximum penalty that is less than the maximum of the guideline range that
would have resulted had there not been a count of conviction under 18 U.S.C.
§ 844(h), § 924(c), or § 929(a) (i.e., the
guideline range that would have resulted if the enhancements for possession,
use, or discharge of a firearm had been applied). In such a case, an upward
departure may be warranted so that the conviction under 18 U.S.C. §
844(h), § 924(c), or § 929(a) does not result in a decrease in the
total punishment. An upward departure under this paragraph shall not exceed the
maximum of the guideline range that would have resulted had there not been a
count of conviction under 18 U.S.C. § 844(h), § 924(c), or §
929(a).

3. Do not apply Chapter Three (Adjustments) and Chapter Four
(Criminal History and Criminal Livelihood) to any offense sentenced under this
guideline. Such offenses are excluded from application of these chapters
because the guideline sentence for each offense is determined only by the
relevant statute. See §§3D1.1 (Procedure for Determining
Offense Level on Multiple Counts) and 5G1.2 (Sentencing on Multiple Counts of
Conviction).

4. Imposition of a term of supervised release is governed by the
provisions of §5D1.1 (Imposition of a Term of Supervised Release).

5. Subsection (b) sets forth special provisions concerning the
imposition of fines. Where there is also a conviction for the underlying
offense, a consolidated fine guideline is determined by the offense level that
would have applied to the underlying offense absent a conviction under
18 U.S.C. § 844(h), § 924(c), or § 929(a). This is required
because the offense level for the underlying offense may be reduced when there
is also a conviction under 18 U.S.C. § 844(h), §
924(c), or § 929(a) in that any specific offense characteristic for
possession, brandishing, use, or discharge of a firearm is not applied
(see Application Note 2). The Commission has not established a fine
guideline range for the unusual case in which there is no conviction for the
underlying offense, although a fine is authorized under 18 U.S.C. § 3571.

Background: Section 844(h) of title 18, United States Code,
provides a mandatory term of imprisonment. Sections 924(c) and 929(a) of title
18, United States Code, provide mandatory minimum terms of imprisonment. A
sentence imposed pursuant to any of these statutes must be imposed to run
consecutively to any other term of imprisonment. To avoid double counting, when
a sentence under this section is imposed in conjunction with a sentence for an
underlying offense, any specific offense characteristic for explosive or
firearm discharge, use, brandishing, or possession is not applied in respect to
such underlying offense.

§2K2.5. Possession of Firearm or Dangerous Weapon in Federal
Facility; Possession or Discharge of Firearm in School Zone

(a)Base Offense Level: 6

(b)Specific Offense Characteristic

(1)If --

(A)the defendant unlawfully possessed or caused any firearm or
dangerous weapon to be present in a federal court facility;
or

(B)the defendant unlawfully possessed or caused any firearm to be
present in a school zone,

increase by 2 levels.

(c)Cross Reference

(1)If the defendant used or possessed any firearm or dangerous weapon
in connection with the commission or attempted commission of another offense,
or possessed or transferred a firearm or dangerous weapon with knowledge or
intent that it would be used or possessed in connection with another offense,
apply --

(A)§2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to
that other offense if the resulting offense level is greater than that
determined above; or

(B)if death resulted, the most analogous offense guideline from
Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is
greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. §§ 922(q),
930.

Application Notes:

1. "Dangerous weapon" and "firearm" are defined in the Commentary to
§1B1.1 (Application Instructions).

2. "Federal court facility" includes the courtroom; judges
chambers; witness rooms; jury deliberation rooms; attorney conference rooms;
prisoner holding cells; offices and parking facilities of the court clerks, the
United States attorney, and the United States marshal; probation and parole
offices; and adjoining corridors and parking facilities of any court of the
United States. See 18 U.S.C. § 930(f)(3).

3. "School zone" is defined at 18 U.S.C. § 922(q). A sentence of
imprisonment under 18 U.S.C. § 922(q) must run consecutively to any
sentence of imprisonment imposed for any other offense. In order to comply with
the statute, when the guideline range is based on the underlying offense, and
the defendant is convicted both of the underlying offense and 18 U.S.C.
§ 922(q), the court should apportion the sentence between the count
for the underlying offense and the count under 18 U.S.C. § 922(q). For
example, if the guideline range is 30-37 months and the court determines "total
punishment" of 36 months is appropriate, a sentence of 30 months for the
underlying offense, plus 6 months under 18 U.S.C. § 922(q) would satisfy
this requirement.

4. Where the firearm was brandished, discharged, or otherwise used,
in a federal facility, federal court facility, or school zone, and the cross
reference from subsection (c)(1) does not apply, an upward departure may be
warranted.

(1)If the offense was committed with intent (A) to kill or injure any
person, or (B) to injure the mails or other property, apply §2X1.1
(Attempt, Solicitation, or Conspiracy) in respect to the intended offense;
or